n 


3 upttmc  $mtt. 

General  Term.       Third  Department. 


PEOPLE  OF  THE  STA  TE  OF  NEW  YORK, 

vs. 

WILLIAM  M.  TWEED, 
Impleaded  with  Otlwrs. 


PEOPLE  OF  THE  STATE  OF  NEW  YORK, 

vs. 


RICHARD  B.  CONNOLLY. 


PEOPLE  OF  THE  STA  TE  OF  YEW  YORK, 

vs. 

THOMAS  C.  FIELDS, 
and  the  Mayor,  Aldermen,  and  Commonalty  of  the 


City  of  New  York. 


OPINIONS  OF  THE  COURT  ON  THE  DEMURRERS. 


FRANCIS  C.  HARLOW, 

Attorney  General. 

$ttt)  Hlovh. 

John  I'oi.hk.mi  s,  Printkii,  102  Xassau  Stkeet. 
1  872. 


Ex  iCtbrtH 


SEYMOUR  DURST 


-f  '  "Fort  ntetiut  ^fm/lerdam.       Je  M<rrJ>atanj 


IVhen  you  leave,  please  leave  this  book 

Because  it  has  been  said 
"Ever  thing  comes  I  htm  who  watts 

Except  a  loaned  book." 


Avery  Architectural  and  Fine  Arts  Library 

(ill  I  (  'I  Si  1  Ml  'I  R  M  1)1  RSI  ()l  I)  Yi  IRK  I  IMR  \R1 


Jwjtettt*  (Court, 

THIRD  DEPARTMENT. 


The  People  of  the  State  of  New  York, 

Plaintiffs,  r  Before  MlL 


lee.  Potter 
against  ,     &  p^RKER, 


William  M.  Tweed,  and  others. 

Defendants. 


JJ. 


The  Peoplk  of  the  State  of  New  York. 

Plaintiffs. 

against 

Richard  B.  Connolly. 

Defendant. 


J 


These  two  eases  are  appeals  from  orders  of  a  Special 
Term. 

Thev  involve,  substantially,  the  same  (piestions  of  law. 
They  arise  upon  demurer,  and  were  argued  together. 
The  facts  will  sufficiently  appear  in  the  opinion. 

Chakle-  O'Conok.  Samuel  J.  Tildes,  and  W.  H. 
Pbckham,  for  the  People. 

David  Didlky  Field.  E.  W.  Stocghton,  Wm.  Fel- 
ler-ton, John  E.  Bubrux,  John  II.  Reynolds,  N.  O. 
Bodtell,  John  Graham,  Elihe  Root  and  William 
Bartlett.  for  defendant  Tweed. 


1-21 


The  same  counsel,  and  W.  A.  Beach  and  S.  G. 
Cm  kinky,  for  defendant  Coxxoi.lv. 

Mii.i.kk.  /'.  ./.  :  The  money  which  the  plaintiffs  claim 
to  recover  in  this  action  was  realized  under  and  by  virtue 
of  an  Act  of  the  Legislature  of  this  State  entitled  "  An 
Act  to  make  further  provision  for  the  government  of  the 
county  of  New  York,"  passed  on  the  2*>th  .»!  April.  1870. 
(S.  L.  of  1S70.,  Chapter  882,  page  8?5). 

By  Section  4  of  said  Act  it  was  provided  that.  "  All  li 
abilities  against  the  county  <»f  Xew  York  previous  to  the 
passage  of  this  Act  shall  he  audited  by  the  Mayor  of  the 
city  of  New  York,  the  Comptroller  of  the  said  city,  and 
the  [then]  present  President  of  the  Board  of  Supervisors, 
and  the  amounts  which  are  found  to  he  due  shall  he  pro- 
vided for  by  the  issue  of  revenue  bonds  of  the  county  of 
New  York,  payable  during  the  year  one  thousand  eight 
hundred  and  seventy-one:  and  the  Board  of  Supervisors 
shall  include  in  the  ordinance  levying  the  taxes  for  the 
year  eighteen  hundred  and  seventy-one  an  amount  sutli- 
cient  to  pay  said  bonds  and  the  interest  thereon.  Such 
claims  shall  be  paid  by  the  Comptroller  to  the  party  or 
parties  entitled  to  receive  the  same,  upon  the  certificate 
of  the  officers  named  herein." 

It  will  be  observed  that  the  money  raised  by  the  i- 
sue  of  revenue  bonds  was  to  be  paid  by  the  Comptrol- 
ler to  the  parties  entitled  to  receive  the  same  upon  the 
certificate  of  the  officers  designated.  Although  the  com- 
plaint alleges  that  the  money  obtained  upon  the  bonds 
issued  was  deposited  to  the  credit  of  an  account  kept  by 
the  Chamberlain  of  the  city  of  New  York,  as  County 
Treasurer  of  said  county,  there  is  no  statute  authorising 
or  requiring  any  such  deposit,  and  therefore  this  allega- 
tion is  immaterial  to  make  out  a  cause  of  action,  and 
this  case  must  be  considered  as  if  the  money  remained 
in  the  possession  and  under  the  control  of  the  officer 
named,  for  the  purposes  designated  in  the  Act,  until 
otherwise!  lawfully  disposed  of. 

The  money  claimed  wa>  in  the  hands  of  the  Comp- 
troller, to  be  paid  by  him.  as  required  by  law,  to  the 
parties  who  had  ft  lawful  right  to  the  same,  and  the  bonds 


122 


upon  which  the  money  was  obtained  were  subsequently 
taken  up  in  pursuance  of  chapter  323,  entitled  "  An  Act 
for  the  Consolidation  of  the  Debt  of  the  County  of  New 
York,"  (S.  L.  of  1871,  p.  031),  and  new  bonds  issued  in 
the  place  of  the  old  ones. 

The  injury  complained  of,  and  for  which  redress  is 
sought  in  this  action,  is  for  issuing  bonds  to  a  larger 
amount  than  was  required  for  the  purposes  named,  viz  : 
the  payment  of  liabilities  against  the  county,  and  the  ap- 
propriation of  the  excess  of  money  which  was  thus 
raised  by  and  for  the  benefit  of  the  defendants. 

There  was  no  Lawful  authority  to  raise  any  amount  of 
money  beyond  what  was  required  for  objects  contem- 
plated by  the  Act  of  1ST<».  before  cited.  The  amount 
which  was  realized  besides  what  was  required  for  the 
payment  of  debts,  was  not  for  the  benefit  of  the  county 
or  to  pay  its  liabilities,  or  to  be  paid  into  the  county 
treasury  for  any  purposes  whatever.  There  is  no  law 
either  for  raising  or  appropriating  anv  such  fund  beyond 
the  liabilities  of  the  county;  for  if  six  millions  or  any 
lesser  sum  could  be  raised  in  this  manner,  then  one  hun- 
dred millions,  or  any  other  unlimited  amount,  might  be 
thus  obtained. 

So  far,  then,  as  the  money  appropriated  by  the  defend- 
ants is  concerned,  it  was  procured  without  any  lawful 
authority,  and.  in  fact,  in  direct  violation  of  law,  as  the 
Act  under  which  it  was  supposed  to  be  obtained  does 
not  sanction  anv  such  proceeding.  It  was  only  legal 
debts,  honest  and  bona  fide  liabilities  against  the  county 
which  were  to  l>e  audited  and  provided  for  by  the  issue 
of  revenue  bonds,  nnd  none  but  these  demands  would 
properly  come  within  the  provisions  of  the  law. 

The  defendants,  then,  were  in  possession  of  funds  with- 
out any  legal  sanction  whatever.  As  they  were  not  ob- 
tained for  the  benefit  of  the  county,  nor  lawfully  paid  to 
its  proper  officer,  1  am  inclined  to  think  that  the  county 
was  not  the  owner  and  never  had  lawful  control  over  the 
money,  and  it  never  was  within  its  lawful  custody. 
While  the  county  is  liable  to  the  innocent  and  bona  fide 
holders  of  the  bonds,  issued  by  its  proper  officers  in  due 
form,  acting  under  color  of  authority,  it  by  no  means 


123 


follows  that  the  funds  thus  unlawfully  obtained,  and 
which  never  had  been  lawfully  paid  over  to  the  county 
or  for  its  benefit,  were  the  property  of  the  county. 

Even  if  it  be  conceded  that  the  county,  in  its  corporate 
capacity,  can  sue.  as  it  was  neither  the  owner  nor  in  the 
lawf  ul  possession  of  this  money,  it  could  not  maintain  an 
action  of  the  character  of  the  one  now  before  us  for  its 
recovery. 

The  taxpayers  can  maintain  nosuch  action,  nor  in  any 
form  demand  redress,  as  has  been  adjudicated  by  the 
Court  in  numerous  cases.  (Doolittle  Supervisors  of 
Broome  county,  IS  N.  Y.,  155  ;  Roosevelt  vs.  Draper,  L6 
How.,  137;  23  X.  V..  324.  See  also  12  Peters,  1<»0.) 
The  future  taxpayers  who  may  be  called  upon  to  pay 
the  bonds,  who  are  at  present  unknown,  and  some  of 
them  not  in  existence,  are  the  parties  really  interested, 
and  they  cannot  prosecute  for  the  reason  that  is  not 
known  who  they  are  or  may  be.  Unless  this  action  can 
be  maintained,  there  is,  perhaps,  no  remedy. 

Assuming,  then,  as  I  think  we  must  from  the  plead- 
ings, that  the  money  was  unlawfully  raised,  and  that  it 
was  unlawfully  received  and  held  by  the  defendants,  the 
question  arises,  and  is  the  main  question  to  he  decided 
in  this  case,  whether  the  people  can  maintain  this  action 

it  is  contended  by  the  defendants'  counsel,  that  the 
power  of  the  Attorney  General  in  England,  as  the  repre- 
sentative of  the  Crown,  to  correct  abuses  or  misapplica- 
tion of  trust  funds,  by  an  information  in  equity,  was 
confined  to  trusts  for  charitable  u>es.  and  that  funds  of 
municipal  corporations,  which  are  not  held  for  charitable 
purposes,  are  not  considered  as  trust  funds,  but  are  re- 
garded as  the  property  of  the  corporations,  the  >ame  as 
estates  of  private  individuals  belong  to  them  personally, 
and  in  such  ease,  the  only  remedy,  prior  t<>  the  English 
Act  of  1835,  for  any  misapplication  or  embezzlement, 
was  by  an  action  or  proceeding  in  the  name  of  the  cor- 
poration. 

Assuming  that  the  money  in  controversy  was  the 
property  of  the  corporation  of  the  city  and  county  .>f 
New  York,  which,  as  already  stated.  i>  at  le.i-t  exceed- 
ingly questionable,  it  is  a  matter  of  serious  inquiry  how 


124 


far  the  English  authorities  sustain  the  doctrine  con- 
tended for. 

In  The  Attorney-General  vs.  Brown  (1  Swanston,  Ch. 
II.,  265),  which  was  decided  in  1818,  an  information  in 
equity  w  as  hied  by  the  Attorney-General  against  Com- 
missioners appointed  by  an  Act  of  Parliament  being  au- 
thorized to  levy  a  rate,  not  exceeding  a  certain  amount, 
on  the  occupiers  of  all  houses,  cv;c.,  in  Brighton,  for  pav- 
ing, lighting  and  w  atching  the  town,  and  another  rate  on 
coal  landed  upon  the  beach,  or  otherwise  brought  into 
the  town,  for  repairing  or  building  works  to  protect  the 
coast  of  Brighton  against  the  encroachment  of  the  sea, 
with  power  of  distress  for  non-payment,  &c. 

It  was  alleged  that  the  Commissioners  had  improperly 
applied  a  large  portion  of  the  rate  collected,  and  had  dis- 
trained the  goods  of  the  relator  for  non-payment  of  the 
duty,  and  the  information  asked  for  an  account  and  an 
injunction  against  an  undue  levy,  and  a  direction  that 
they  replace  any  sums  which  they  had  applied  to  purpo- 
ses not  warranted  by  the  Act.  A  general  demurrer,  for 
want  of  equity,  and  a  defect  of  parties,  was  overruled. 

The  Lord  Chancellor  Eldou,  at  the  close  of  the  argu- 
ment remarked  :  u  It  is  said  that  this  is  not  a  charitable 
use,  and  I  am  not  disposed  at  present  to  consider  it 
such ;"  and  in  an  able  and  elaborate  opinion,  after  a  full 
discussion  of  the  case,  he  said,  among  other  things:  "  I 
have  heard  nothing  which  prevents  my  concurring  in  the 
opinion  that  a  parliamentary  grant,  destined  to  such  pur- 
poses, is  a  gift  to  charitable  uses.  If  that  doctrine  is 
contradicted,  it  must  be  done  by  higher  authority  than 
mine.' ' 

Although  it  is  claimed  that  this  case  was  decided  on 
the  ground  alone,  that  there  was  a  charitable  use.  that  such 
was  not  the  fact,  appears  quite  distinctly  from  the  case 
of  The  Attorney-General  vs.  The  Mayor,  &c3  of  Dublin, 
(1  Bligb,  ]S.  S.  R.,  312,)  which  is  hereinafter  particularly 
referred  to. 

The  next  case,  in  the  order  of  time,  bearing  upon  the 
question,  is  The  Attorney-General  vs.  Pleelis,  (2  Simons 
&  Stewart,  07).  This  case  was  decided  in  1N24,  by  the 
then  Vice-Chancellor,  Sir  John  Leach,  who  had  been 


1  '2a 


counsel  in  the  case  of  The  Attorney-General  rx.  Brown. 
It  was  an  information  and  hill  in  which  ten  persons  were 
the  relators  and  plaintiffs,  on  behalf  of  themselves  and 
all  the  other  tenants  and  occupiers  of  houses  and  other 
premises  situate  in  Great  Bolton,  in  the  county  of  Lan- 
caster, subject  to  the  rates  of  assessment,  and  entitled  to 
the  henetit  of  certain  acts  of  Parliament,  under  which  a 
common  was  enclosed  and  vested  in  Commissioners  upon 
trust,  to  apply  the  rents  for  the  improvement  of  the  town, 
with  power  to  them  to  levy  a  rate  on  the  inhabitants 
in  case  the  rents  were  insufficient.  An  account  was 
asked  of  the  rents,  alleging  misapplication,  and  that 
a  rate  levied  was  unnecessary.  A  general  demurrer 
was  interposed,  for  want  of  equity,  which  was  over- 
ruled, on  the  ground,  among  others,  that  funds  sup- 
plied from  the  gift  .of  the  Crown,  or  of  the  Legis- 
lature, or  of  private  persons,  for  any  hyal  pnblii-  or 
general  purpose,  are  charitable  funds,  to  he  administered 
by  Courts  of  Equity.  The  case  of  the  Attorney-General 
VH.  Brown  is  referred  to  in  the  opinion  of  the  Vice-Chan- 
cellor, Sir  John  Leach,  who  had  been  counsel  against  the 
information  in  that  case,  and  the  views  expressed  appear 
to  have  been  based  somewhat  upon  an  erroneous  con- 
struction given  by  him  to  the  authority  in  the  Attorney- 
General  vs.  Brown,  which  case,  as  will  be  seen,  sustains 
a  different  doctrine. 

In  the  Attorney-General  /•*.  The  Mayer.  Arc, of  Dub- 
lin, (1  Bligh,  N.  s.  Rep., 312) decided  in  L827,  aninfor- 
formation  and  bill  was  filed  in  behalf  of  the  inhabitants 
of  Dublin  paying  water  rates  against  the  corporation, 
stating  various  acts  of  mismanagement  and  misappropri- 
ation of  funds  arising  from  the  rates,  submitting  that  tne 
corporation  were  trustees  under  the  Act  for  the  rates 
thereby  given,  for  uses  which  were  charitable  in  their 
nature,  and  charging  that  the  conduct  <>f  Lhe  corporation 
amounted  to  a  breach  of  trust,  and  praying,  among  other 
things,  for  a  declaration  and  execution  of  the  trust,  and 
that  accounts  might  be  taken  of  the  rates  received  by  the 
corporation  and  the  application  thereof,  that  the  wrong 
doers  be  decreed  to  repiaa  tht  money*  they  had  wrong- 
fully taken  or  misapplied,  Are.    It  was  submitted  in  the 


126 


answer  that  the  purposes  specified  in  the  Act  were  not 
charitable  uses,  and  held,  (reversing  the  judgment  of  the 
Court  below,)  that  the  Court  had  jurisdiction  to  entertain 
the  information  and  bill. 

The  decision  of  this  case  is  not  put  upon  the  ground 
that  it  came  within  the  statute  in  regard  to  charitable 
uses.  Lord  Redesdale,  who  wrote  the  principal  opinion, 
at  |'.  341  says  :  "  It  is  expedient  in  such  cases  that  there 
should  be  a  remedy,  and  highly  important  that  persons  in 
the  receipt  of  public  money  should  know  that  they  are 
liable  to  account,  in  a  Court  of  Equity,  as  well  upon  the 
misapplication  of  as  for  withholding  the  funds.  Sup- 
pose even  the  case  of  a  public  accountant,  clearly  within 
the  Act,  who,  having  embezzled  <urt  misemployed  the  pub- 
lic moneys,  had  rendered  accounts  which  were  imperfect 
or  fabricated  ;  could  not  the  Attorney-General,  upon  dis 
covery  of  the  fact  or  the  fraud,  proceed  by  information 
to  recover  the  moneys  so  fraudulently  withheld  or  misap- 
propriated ?" 

Again  he  says  :  "  A  similar  remedy  is  applicable,  as  I 
conceive,  to  any  person  having  the  trust  and  manage- 
ment of  public  money;  any  public  accountant  of  any 
description." 

At  page  347  he  further  remarks,  "  We  are  referred  to 
the  statute  of  Elizabeth  with  respect  to  charitable  uses, 
as  creating  a  new  law  upon  the  subject  of  charitable  uses. 
The  statute  created  only  a  new  jurisdiction — it  created 
no  new  law,"  &c.  *  *  *  "  In  the  process  of  time, 
indeed,  it  was  found  that  the  commission  of  charitable 
uses  was  not  the  best  remedy,  and  that  it  was  better  to 
resort  again  to  the  proceedings  by  way  of  information,  in 
the  name  of  the  Attorney-General.  The  right  which  the 
Attorney-General  has  to  file  an  information  is  a  right  of 
prerogative.  The  King,  as  parens  pat  rue,  has  a  right, 
by  his  proper  officer,  to  call  upon  the  several  courts  of 
justice  according  to  their  several  jurisdictions,  to  see  that 
right  is  done  to  his  subjects  who  are  incompetent  to  take 
care  of  themselves,  as  in  case  of  charities  and  other 
cases." 

The  Lord  Chancellor  (Eldon)  in  the  course  of  the  argu- 
ment, at  page  834,  observed  that  "  The  case  of  the  At- 


127 


torney -General  vs.  Brown,  whether  ill  or  well-decided, 
was  not  decided  solely  upon  the  ground  thai 
it  was  a  charitable  use.  Upon  reflection  I  thought 
so,  but  the  jndgment  rested  upon  other  grounds."  Again 
he  remarks,  "In  the  Attorney-General  vs.  Brown,  the 
question  was  much  argued  whether  the  fund  was  to  be 
applied  to  a  charitable  use.  .  After  the  argument  it  ap- 
peared to  me  that  it  was  a  charitable  use.  But  that  was 
not  the  grov/nd  of  th<-  }udgim'nt  in  that  case,  whether  it 
was  well  or  ill  founded;  because  I  was  of  opinion  that 
the  Court  of  Chancery  had  jurisdiction  in  that  case, 
whether  it  wan  or  was  not  <i  charitable  use."  lie  also 
remarks,  at  page  335,  that  the  case  of  the  Attorney-Gen- 
eral VS.  Ileelis  weakens  the  authority  of  the  Attorney- 
General  VS.  BfuWn,  because  much  of  the  doctrine  in  the 
former  case  is  not  reconcilable  with  the  principle  of  the 
decision  in  the  Attorney-General  vs.  Brown.  That  in 
neither  of  those  cases  did  the  Court  look  sufficiently  into 
the  old  law  upon  the  subject ;  and  that  the  research 
which  has  been  made  rather  confirms  the  decision  in  the 
Attorney -General  vs.  Brown.  At  page  357  he  further 
states  that,  in  the  Attorney-General  r.s.  Brown,  he  "  was 
of  the  opinion  that  it  was  not  necessary  that  it  should  be 
a  charitable  use,  to  give  the  Court  of  Chancery  jurisdic- 
tion upon  the  subject." 

The  case  of  the  Attorney-General  vs.  The  Mayor,  &c 
of  Dublin,  is  a  strong  and  decided  authority  for  the  doc- 
trine that  jurisdiction  exists,  in  all  cases  of  public  trust  of 
the  character  indicated,  in  favor  of  the  Crown. 

I  think  that  the  cases  already  referred  to,  as  explained 
in  1  Iffigh,  must  be  regarded,  up  to  that  time,  as  holding 
that  a  charitable  use  is  not  essential  to  maintain  the  ac- 
tion to  reach  moneys  misappropriated  under  the  circum- 
stances stated. 

In  1S35,  the  ease  of  the  Attorney-General  ex.  The 
Mayor,  A:c.  of  Dublin,  was  followed  and  sustained  by 
the  Attorney-General  vs.  The  Mayor,  &c.  of  Liverpool 
(1  Milne  de  Craig,  171),  where  it  was  held  that  the 
Court  had  authority,  under  its  general  jurisdiction,  to  in- 
terfere for  the  protection  of  property  vested  in  the  cor 


128 


poration  of  a  borough,  upon  the  ground  of  a  breach  of 
trust  committed  or  threatened . 

The  case  from  1  Bligh,  is  cited,  and  at  page  201  the 
Master  of  the  Rolls  remarks:  "  Nobody  ever  questioned 
the  right  of  a  Court  of  Equity  to  interpose  in  order  to 
see  that  the  public  duties  were  discharged,  and  that  the 
trusts  upon  which  the  corporation  held  the  property  were 
duly  performed." 

The  injunction  issued  was  dissolved,  because  the  con- 
struction of  the  statute  was  doubtful,  and  the  injunction 
would  deprive  parties  of  the  opportunity  to  exercise  a 
right. 

The  information  hied  in  the  last  case  cited  was  amend- 
ed, and  the  same  case  is  reported  in  1  Keene,  513,  under 
the  title  of  The  Attorney-General  vs.  Aspinwall,  where 
the  demurrer  was  again  allowed  by  the  Master  of  the 
Rolls. 

Upon  an  appeal  to  the  High  Court  of  Chancery,  the 
decree  of  the  Master  of  the  Rolls  was  reversed,  (2  M.  & 
Craig,  613). 

It  should  be  stated  that  the  information  in  this  case 
was  filed  for  the  purpose  of  setting  aside  a  mortgage 
and  an  appropriation  of  moneys  raised  by  the  corporation 
of  Liverpool,  to  endow  certain  clergymen  officiating  in 
that  city,  made  by  the  old  corporation  before  the  elec- 
tion of  officers  under  the  new  organization,  and  it  was 
held  that,  where  property  is  devoted  to  trusts  which  are 
to  arise  at  a  future  day,  and  to  be  exercised  by  trus- 
tees not  yet  in  esse,  an  intermediate  act  done  by  the 
holders  of  such  property,  inconsistent  with  the  security 
of  the  property,  or  the  performance  of  the  trusts  when 
they  shall  arise,  will  be  set  aside;  and  if  the  trusts  are  of 
a  public  nature,  the  Court  will  entertain  this  juris- 
diction upon  an  information  of  the  Attorney-General, 
notwithstanding  that  the  Trustees,  after  they  come  into 
esse  themselves,  decline  to  interfere.  The  Lord  Chancel- 
lor said,  p.  623  :  "  I  cannot  doubt  that  a  clear  trust  was 
created  by  this  act  far  public,  and  therefore,  in  the  legal 
sense  of  the  term,  charitable  purposes,  of  all  the  prop- 
erty belonging  to  the  corporation  at  the  time  of  the  pas- 
sage of  the  Act." 


129 

The  doctrine  laid  down  in  the  case  last  cited,  is  in 
accordance  with  the  decisions  in  the  previous  cases,  to 
which  reference  has  heen  made,  as  explained  in  1  Bligh. 
It  may  be  remarked  that  the  last  case  was  subsequent  to 
the  English  Reform  Act  of  li>35  (5  and  6,  W.  4,  ch.  76), 
by  which  corporate  funds  were  declared  to  be  trust 
estates  and  funds  of  a  public  character,  and  the  corpora- 
tions or  local  officers  becoming  trustees  for  the  benefit  of 
the  public,  who  become  beneficiaries  under  the  provisions 
of  the  Act,  and  involved  the  construction  of  some  portions 
of  that  Act.    This  fact  does  not,  however,  alter  the  law, 
as  settled  by  previous  cases,  as  to  the  right  to  maintain 
the  action,  even  if  there  is  not  a  trust  in  the  nature  of  a 
charitable  use,  and  does  not  impair  the  full  and  direct 
approval  of  the  Lord  Chancellor  Eldon  of  the  doctrine 
which  had  previously  been  enunciated.    Since  the  passage 
of  the  Act  of  1*35  the  right  of  the  Attorney-General  to 
bring  actions  of  a  similar  character  has  been  repeatedly 
adjudicated  in  the  English  ( 'ourts.  i  See  Attorney-General 
<:r  rel,  the  Mayor,  &c.         Wilson  <t  ,il.  1    Craig  it 
Philips,  1  ;  The  Attorney-General  V8.  the  Corporation  of 
Poole.  2  Keene.  1!M>;  same  case.  4  Milne  A:  Craig  17: 
also.  <S  Clarke  &  Kinelly,  409;   Attorney-General  VS. 
Eastlake.  11  Hare,  205;   the  same  VS.  Barrett,  3  Irish 
Rep.,  N.  S.  Chan.  R.  Eq.,  3!>2  ;  the  same  vs.  Compton, 
1  Younge  &  Collyer,  417.  i    I  do  not  consider  it  im. 
portant  to  review  these  cases  at  length,  and  will  only  re- 
fer to  one  of  them,  which  directly  bears  upon  the  ques- 
tion discussed. 

The  Attorney -General  ?*.  Eastlake  (stipra)^  was  an 
information  tiled  at  the  relation  of  two  of  the  rate- 
pavers  of  Plymouth  against  a  majority  of  certain 
commissioners,  appointed  under  a  local  Act,  who 
were  authorized  to  lew  rates  fur  paving,  light- 
ing. &C,  the  streets  of  a  town,  and  it  was  held  that 
as  the  object  was  beneficial,  not  only  to  the  inhabitants 
subjected  to  the  rates,  but  also  to  other  persons  having 
occasion  to  visit  the  town,  the  purpose  was  public  and 
charitable  within  the  meaning  of  the  statute  of  chari- 
table uses,  and  the  question  depends,  not  on  the  source 
from  which  the  funds  were  derived,  hut  the  purpates  for 


130 

which  they  were  applied.  In  this  case  the  earlier  au- 
thorities are  examined  and  discussed  at  length  by  the 
learned  Vice-Chancellor,  who  considered  that  the  case  of 
Ileelis  was  over-ruled,  and  that  of  Brown  sustained  by  1 
Bligh.  He  argues,  at  page  216,  that  "  all  the  cases  agree 
that  not  only  the  particular  public  or  general  purpose* 
expressed  in  the  Statute  of  Elizabeth  are  charitable,  but 
that  all  other  legal, public  or  general  purposes  are  within 
the  equity  of  the  statute." 

After  stating  a  case  where  an  Act  of  Parliament  is 
passed  for  a  private  purpose,  and  for  the  benefit  of  indi- 
viduals who  are  dealing  with  their  own  property,  he  re- 
marks, at  page  222.  Arc,  "  but  when  you  come  to  the 
purpose  of  paving  and  lighting  a  town,  which  is  for  the 
benefit  of  all  the  inhabitants,  &c,"  "  one  does  not 

need  to  look  at  this  recital,  by  which  we  are  told  that, 
amongst  other  things,  there  will  be  benefited  The  Royal 
Naval  Hospital,  The  Royal  Barracks  and  other  pub- 
lic establishments.  It  is  sufficient  to  say  it  is  a  large 
and  general  purpose  for  this  town,  although  not  beyond 
the  limits  of  the  town,  and  for  that  purpose  certain 
moneys  are  to  be  levied.  I  cannot  see  that  the  source 
from  which  these  moneys  are  here  derived,  namely,  from 
taxation,  can  make  any  difference  as  to  the  charitable 
><r  public  nature,  and  which  would  be  attributable  to  the 
funds  if  they  proceeded  from  a  more  limited  sphere  of 
bounty  ;  and  if  there  be  no  distinction  tin  that  ground,  the 
Attorney-General  is  the  proper  person  to  represent  those 
who  are  interested  in  that  general  and  public  or  charita- 
ble purposed  This  case,  then,  virtually  and  really  holds 
that  all  public  uses  are  in  legal  effect  charitable  uses,  and 
that  funds  raised  for  the  general  purposes  of  the  public 
are  within  the  rule.  If  rates  raised  for  the  paving  of  a 
town  are  within  the  rule,  moneys  realized  under  an  Act  of 
the  Legislature,  to  pay  debts  incurred  in  the  government 
of  a  great  city,  and  in  making  public  improvements  for 
the  benefit  of  its  inhabitants  and  others  who  may  have 
business  there,  are  clearly  embraced  in  the  principle  de- 
cided. The  analogy  is  striking  between  the  two  cases, 
and  I  am  unable  to  discover  any  real  ground  of  distinc- 
tion. 


131 


The  case  of  The  Attorney-General  vs.  The  Corporation 
of  Carmarthan  (( toper's  Chan.  Cases,  30),  cited  by  defend- 
ants' counsel,  is  not  in  opposition  to  these  views.  In  that 
case  a  demurrer  w  as  interposed  for  multifariousness,  which 
was  allowed,  and  the  case  was  decided  in  LS05,  long 
prior  to  the  decisions  before  cited,  which  uphold  the  doc- 
trine that  an  action  may  he  maintained  by  the  Attorney- 
General,  even  if  there  is  not  a  charitable  use.  A  careful 
review  of  the  English  cases  establishes,  beyond  contro- 
versy, that  whenever  an  individual  or  a  corporation  have 
been  authorized  by  a  statute  to  administer^/MV;  fund* 
for  public  purposes,  such  person  or  body  is  liable  to  an 
action  by  the  Attorney-General  for  any  misapplication 
o]-  misconduct  in  the  performance  of  the  trust  I  am 
not  aware  of  any  reason  why  the  same  principle  should 
not  control  in  this  case. 

The  defendants'  counsel  rely  upon  the  case  of  The 
People  v.s.  Miner  {2  Lansing,  3!H>)  as  an  authority  in 
their  behalf,  which,  it  is  claimed,  being  a  General 
Term  decision  of  this  Court,  is  decisive  of  the  ques- 
tion. The  action  in  that  case  was  brought  in  the 
name  of  the  People  against  the  defendants,  as  railroad 
eonimisioners,  to  restrain  them  from  issuing  certain  bonds, 
under  an  Act  of  the  Legislature  of  this  State,  for  railroad 
purposes,  and  it  was  held  that  neither  the  Code  confers 
upon  the  Attorney- General  the  power  to  prosecute  in  the 
name  of  the  People,  nor  has  .he  such  power  at  common 
law.  The  learned  Judge  who  wrote  the  opinion,  main- 
tains the  position  that  the  only  cases  in  which,  at  common 
law,  the  Attorney-General  was  authorized  to  interfere  to 
restrain  corporate  action,  or  was  a  necessary  party  for 
that  purpose,  were  those  in  which  the  act  complained  of 
would  produce  a  public  nuisance  or  tend  to  a  breach  of 
trust,  for  charitable  uses. 

In  this  I  think  that  he  is  entirely  mistaken,  so  far  at 
least  as  relates  to  municipal  corporations,  and  he  does  not 
Sufficiently  discriminate  between  public  and  private  cor- 
porations, the  difference  between  which  should  be  home 
in  mind  in  the  examination  of  questions  of  this  charac- 
ter. 

It  is  also  apparent  that  he  has  entirely  overlooked  the 


132 


case  of  the  Attorney-General  vs.  The  Mayor  of  Dublin  (1 
Bligh,  W.  P.,  Rep.  312..)  to  which  he  refers  at  page  407. 
and  savs  :  "  I  have  thus  referred  to  all  the  cases  cited  in 
the  opinion  of  Duer.  J.,  except  that  in  2  Bligh  X.  R., 
312,  which  I  have  not  been  able  to  find." 

The  case  is  wrongly  cited  in  2  Duer,  668,  as  well  as 
in  2  Lansing,  and  hence  was  not  at  all  considered  by 
the  learned  Judge.  As  this  case,  thus  omitted,  gives  a 
construction  to  the  prior  decisions,  and,  as  already  shown, 
settles  the  law  up  to  that  period,  its  omission  destroys 
the  force  of  th  •  People  vs.  Miner  as  a  binding 
authority,  even  it  it  were  applicable  here.  The  fact 
that  no  effect  is  given  to  the  Attorney-General  vs.  The 
Mayor  of  Dublin,  and  the  latter  case  not  having  been  ex- 
amined, discussed  or  considered,  the  case  last  cited  is  not 
decisive  of  the  question  now  before  us. 

It  may  also  be  remarked  that  the  opinion  begins  with 
a  decision  that  the  merits  of  the  action  were  ao-ainst  the 
plaintiff,  thus  rendering  it  unnecessary  to  decide  the  ques- 
tion, which  was  fully  discussed,  and  therefore  it  is  obiter. 

This  case  also  holds  substantially  that  a  taxpayer  is 
the  propei-  party  to  bring  such  an  action,  which,  if  not  er- 
roneous, is  at  least  doubtful,  as  the  General  Term  in  the 
Fourth  Department  have  recently  held  the  other  way. 
(See  Mans,  opinion.    Avers  vs.  Lawrence.) 

With  all  the  respect  which  I  entertain  for  the  distin- 
guished jurist  who  gave  the  opinion  referred  to.  and 
with  all  the  consideration  which  should  generally  be  giv- 
en to  a  General  Term  decision,  it  would  not  be  in  ac- 
cordance with  well-established  rules  to  hold  that  this 
case,  under  the  circumstances,  was  controlling  and  de- 
cisive. 

In  the  case  of  the  Attorney-General  vs.  The  Utica  In- 
surance Company,  (2  John.  Ch.  R.,  371.,)  also  cited  bv 
defendants,  the  right  of  the  Attorney-General  to  main- 
tain an  action  against  a  private  corporation  was  considered, 
but  that  authority  does  not.  I  think,  decide  the  ques- 
tion here  involved.  It  merely  related  to  the  jurisdiction 
of  the  Court  over  offences  against  a  public  statute,  in  re- 
gard to  the  business  of  banking,  which  arose  on  a  motion 
made  by  the  Attorney-General  upon  an  information  filed 


133 


by  him.  The  remarks  at  page  384  were  not  necessary  to 
the  decision  of  the  case,  and  the  authorities  cited  mainly 
looked  the  other  way.  But  conceding  that  the  opin- 
ion expressed  is  entitled  t<>  consideration,  it  i>  worthy 
of  observation  that  the  principle  claimed  to  be  upheld 
has  been  overruled  in  the  English  Courts  by  numerous 
subsequent  cases.  This  case  was  decided  in  ls17.  while 
those  which  we  have  already,  cited,  as  decisions  of  the 
law,  were  all  determined  at  a  far  later  period. 

The  defendants  a^so  rely  upon  the  language  of  Davis, 
J.,  in  the  People  vs.  Booth  (32  X.  Y.,  398).  This  is  not 
an  analogous  case,  and  the  remarks  there  made  were  not 
called  for  in  deciding  the  case,  and  therefore  must  he 
considered  as  an  obitett  dictum. 

It  has  been  held  that  the  Attorney-General  may  prose- 
cute on  behalf  of  the  State,  or  the  State  itself,  where  a 
preventive  remedy  is  called  for  by  the  circumstances. 
(Davis  vs.  The  Mayor  of  N.  V  .  14  X.  Y.,  526;  The 
Same  rs.  The  Same,  2  Duer,  *><>3.  See  also  11  II arc, 
223.) 

In  2  Duer.  •  >•'>•'>.  667,  66t3  (supra),  the  right  of  the  At- 
torney-General, in  the  name  of  the  people,  to  maintain 
an  action  for  a  public  wrong,  is  fully  and  ably  vindicated, 
and  although  the  authority  of  the  last  case  is  questioned 
in  the  People  VS.  Miner.  I  am  inclined  to  think  that  the 
views  expressed  by  Duer.  .I.,  can  be  upheld,  as  we  have 
already  seen,  both  upon  principle  and  authority. 

In  the  People  vs.  The  Mayor,  etc.  (32  Barb.,  L02),  it 
was  held  by  Ilogeboom,  J.,  at  Special  Term,  that  where 
there  was  a  clear  violation  of  law.  or  a  clear  misuser  or 
abuse  of  corporate  powers,  the  people,  as  representing  the 
general  public,  the  body  of  citizens  who  are  aggrieved, 
are  the  proper  parties  to  enforce  the  remedy. 

In  the  People  VS.  Lowlier  (7  Abb.,  l.">si,  Ingraham,.!..  in- 
timates an  opinion,  that  in  such  a  case  as  was  then  be- 
fore him  the  Attorney-General  might  maintain  the  ac- 
tion. 

In  the}People  vs.  The  Mayor,  t'.'  Abb.,  263),  the  Bame 
views  are  expressed  by  the  same  learned  .Judge.  In  the 
People  VS.  The  Mayor  (1<>  Abb.,  144.)  T.  K.  Strong.  .1.. 
holds  the  same  doctrine. 


134 


Although  the  views  of  these  distinguished  Judges  are 
not  entirely  decisive,  yet  thev  are  entitled  to  great  con 
sideration. 

There  are  also  several  cases  which  have  come  to  my 
knowledge,  which  are  not  reported,  which  are  directly 
adverse  to  the  People  vs.  Miner,  and  which  involved  the 
precise  question  which  there  arose ;  that  is,  whether  the 
people  could  maintain  an  action  restraining  railroad 
commissioners  from  issuing  bonds. 

In  the  People  ex  /■>  /..  Leonard  Proctor  vs  Swarthout, 
et  (U,  which.  I  understand,  w  as  a  similar  action.  Justice 
Mason,  as  Referee,  held  that  the  action  could  he  main- 
tained, and  in  his  opinion  he  says  :  "This  action  is  proper- 
ly brought  by  the  Attorney  General  in  the  name  of 
the  People,  on  the  relation  of  Proctor.  The  right  to 
prosecute  and  maintain  this  action  is  given  by  statute," 
tfcc.  "  The  Attorney-General  has  the  right  to  maintain 
this  suit  independently  of  the  statute  at  common  law;" 
and  cites  Story's  Eq.  PL,  Sees.  8  and  49;  Mitford's 
Eq.  PI..  31,  24,  32;  Part.  102  ;  Barbour  on  Parties, 
307;  Edwards  on  Parties  in  Eq.,  l>0  and  * ►  1  ;  Calvert  on 
Parties,  301-308. 

In  the  People  ex  rd..  Thompson  et  a/,  vs.  Benedict 
et  al,  railroad  commissioners,  and  others,  which  was  an 
action  to  declare  void  certain  bonds  alleged  to  have 
been  unlawfully  executed  by  said  railroad  commissioners, 
a  demurrer  was  interposed  by  the  complaint,  and  sus- 
tained at  Special  Term.  Upon  an  appeal  at  General 
Term  in  the  Third  Judicial  District,  before  Justices  Hoge- 
boom,  Peckham,  and  Ingalls,  in  March,  1S7<»,  Hoge- 
boom,  J.,  delivering  the  opinion,  it  was  decided  that  the 
action  was  properly  brought  in  the  name  of  the  People,  and 
the  demurrer  over-ruled.  The  learned  Judge  said  :  "  1 
think,  under  our  statutes  authorizing  suits  to  be  com- 
menced by  the  Attorney-General  to  restrain  corporations 
from  exercising  unlawful  powers,  and  individuals  from 
exercising  corporate  rights  and  privileges  not  granted  to 
them  by  any  law  of  the  State,  and  under  the  well-estab- 
lished powers  of  a  Court  of  Equity,  this  suit  is  well 
hi  •ought  in  the  name  of  the  people." 

This  case  involved  the  same  question  as  the  People  vs. 


135 


Minor,  and  is  similar  in  its  leading  features.  The  action 
could  not  be  maintained  without  a  decision  of  this  very 
point  in  favor  of  the  plaintiff,  and  as  it  is  not  apparent 
that  any  consideration  bearing  upon  the  question  was 
overlooked.  I  am  at  loss  to  see  how  it  can  be  disregarded 
as  a  binding  authority.  It  is.  at  least,  entitled  to  as  much 
weight  as  the  People  rs.  Miner. 

After  a  careful  examination  of  the  cases  bearing  upon 
the  question  considered,  my  conclusion  is,  that  the  action 
is  properly  brought  by  the  Attorney-General  in  the  name 
of  the  people,  and  can  be  maintained  in  its  present  form. 

Where  a  public  right  is  infringed  upon,  the  State,  by 
the  Attorney-General,  may  bring  an  action  for  the  bene- 
fit of  the  people  at  large,  or  of  a  portion  of  the  public. 
Such  a  rule  cannot  be  confined  merely  to  public  nui- 
sances. Many  wrongs  may  exist  without  a  remedy,  ex- 
cept through  the  intervention  of  the  State,  and  it  seems 
to  me  that  there  is  nothing  inconsistent  with  the  prin- 
ciples upon  which  our  government  is  founded  and  admin- 
istered, to  allow  the  chosen  officer  of  the  people,  in  their 
own  name,  to  prosecute  an  action  of  this  character,  hav- 
ing in  view  the  protection  of  the  interests  of  the  public 
against  those  acting  as  trustees  on  the  behalf 
of  a  municipal  corporation.  There  is  no  pro- 
vision of  the  Revised  Statutes,  or  the  Code,  inconsistent 
with  such  course  of  procedure,  and  I  apprehend  no 
danger  can  arise  from  the  abuse  of  such  a  power,  as  it 
is  always  the  subject  of  legislative  restriction  and  regu- 
lation. This  is  the  extent  to  which  it  is  necessary  to  go 
to  sustain  the  plaintiff's  action. 

Nor  is  there,  in  my  opinion,  any  substantial  ground  for 
claiming  that  the  action  cannot  be  maintained  in  equity 
because  a  money  judgment  is  demanded. 

The  Code  has  abolished  the  distinction  between  law 
and  equity,  and  the  equitable  character  of  the  claim  is 
not  less  apparent  because  money  was  unlawfully  raised 
and  misappropriated. 

That  the  recovery  of  money  may  he  a  part  of  the 
relief  demanded  in  an  equitable  action,  is  also  abund- 
antly established  by  authority.  This  was  a  part  of  the 
relief  demanded  in  the  Attorney- General  m.  The  Mayor 


136 


of  Dublin  ;  and  Lord  Redesdale,  in  his  opinion,  as  we 
have  already  seen,  puts  the  question  whether  the  Attomey- 
( reneral  conld  not  proceed  by  information  "  to  recover  the 
moneys  so  fraudentlj  withheld  or  misappropriated."  See, 
also,  Attorney-General  vs.  Oompton,  1  Yonnge  tfe  Coll- 
yer's  R.,  pp.  417,  426,  427. 

If  an  accounting  can  be  demanded  in  such  a  case,  it 
seems  quite  clear  that  where  no  accounting  is  required, 
because  the  amount  misappropriated  is  fixed  and  deter- 
mined, that  a  recovery  of  the  money  in  the  hands  of  the 
parties  may  be  demanded.  If  money  could  not  be 
demanded  in  an  action  in  equity,  in  cases  of  public 
trust,  the  equitable  remedy  would  fail  in  many  cases. 

If  the  view  expressed  are  correct,  then  it  is  not  neces- 
sary to  consider  the  question  whether  the  Board  of  Super- 
visors or  the  County,  even  if  there  was  a  right  in  either 
of  these  bodies  to  sue,  has  authority  to  bring  an  action 
on  behalf  of  the  County. 

In  The 'Attorney-General  vs.  Wilson,  (1  Craig  &  Phil- 
ips, 1.)  before  cited,  where  the  wrong-doers  were  officers 
of  the  borough  of  Leeds,  the  Lord  Chancellor  expressed  an 
opinion  (at  page  23)  that  although  the  Attorney-General 
might  assert  the  right  of  the  public  in  an  information,  "if 
before  the  Act  passed,  a  corporation  might,  in  a  proper  case, 
institute  a  suit  for  the  purpose  of  setting  aside  transac- 
tions fraudulent  against  it,  though  carried  into  effect  in 
the  name  of  the  corporation,  that  right  cannot  be  affected 
by  the  Attorney-General  having  a  power  to  complain  of 
the  transaction."  According  to  this  intimation  there 
may,  perhaps,  be  two  rights  of  action  which  are  not  in- 
consistent. 

It  is  not,  however,  necessary  to  determine  this  point, 
and  it  is  of  no  consequence,  whether  the  count)7  has  the 
power  to  sue,  if  that  right  exists  in  the  People. 

It  is  quite  enough  that  the  action  ean  be  maintained, 
in  its  present  form,  in  the  name  of  the  People,  to  uphold 
the  complaint. 

Nor  is  it.  in  my  opinion,  necessary  that  the  county 
should  be  made  a  party  in  order  to  maintain  this  action, 
were  they  entitled  to  the  money.  In  m  st  of  the  cases 
cited,  which  related  to  the  rights  of  municipal  corpora- 


137 


tions,  these  municipalities  were  not  made  parties.  Such 
was  the  fact  in  reference  to  Dublin,  Brighton,  Liverpool 
and  Leeds. 

The  averment  of  collusion  in  the  complaint  was  not 
essential,  and  this,  as  well  as  such  portions  of  the  com- 
plaint as  set  forth  facts  not  material  to  sustain  the  cause 
of  action,  upon  the  grounds  already  discussed,  are  redun- 
dant, irrelevant  and  immaterial.  They  furnish  do  ground 
for  demurrer,  and  migh  have  been  stricken  out.  if  a  mo- 
tion had  been  made  at  the  proper  time,  or  may  now  be 
disregarded  as  surplusage. 

The  question  raised,  as  to  the  disposition  to  be  made  of 
the  money  which  may  be  realized  if  a  recovery  be  had. 
is  of  no  importance,  if,  as  the  authorities  hold,  the  action 
can  be  maintained.  It  may.  however,  be  assumed,  I 
think,  that  the  Legislature  of  the  State,  in  its  wisdom, 
will  make  such  provision  for  its  appropriation  as  will  be 
just  and  proper,  and  the  circumstances  of  the  case  de- 
mand. 

Some  other  questions  are  raised  by  the  defendant?-' 
counsel,  but  these  are  not  of  sufficient  importance  to  de- 
mand discussion. 

The  order  appealed  from  must  be  affirmed  with  costs, 
with  leave  to  amend  in  twenty  days  after  service  of 
order,  upon  payment  of  costs. 

The  decision  of  the  case  of  The  People  vs.  Connolly 
depends  mainly  upon  the  questions  already  discussed, 
and  as  no  additional  points  are  presented,  which  author- 
ize a  reversal  of  the  order  in  the  latter  case,  it  must,  for 
the  reasons  stated,  be  affirmed,  and  the  same  order  made 
in  all  respects. 

Potter,  J.,  wrote  for  affirmance,  and 
Parker,  J.,  for  reversal. 


138 


Potter,  Justice  : — This  case  involves,  in  all  its  deter- 
mination, simply  the  question  of  the  legal  sufficiency  of 
the  plaintiffs'  complaint  as  a  pleading.  Eliminating  all 
unneccessary  verbiage  of  statement,  the  action  is  simply 
one  brought  against  the  defendants  as  trustees  and  pub- 
lic officers  created  by  the  Legislature.  It  is  brought  to 
recover  moneys  in  their  hands  which,  as  is  alleged,  they, 
by  corrupt  and  fraudulent  conduct,  and  by  unlawful 
combination  and  conspiracy  with  others,  have  appropri- 
ated to  their  private  use;  for  breach  of  trust  and  for 
fraudulent  omission  of  duty.  The  cases  have  been 
thoroughly,  elaborately  and  ably  argued,  both  upon  oral 
and  printed  briefs,  and  we  have  given  to  the  examina- 
tion of  the  questions  a  liberal  share  of  time  and  the  ex- 
ercise of  our  best  judgment.  The  detail  of  facts  set  forth 
in  the  complainl  shows  the  appointment  to  office  of  the 
defendants,  and  the  maimer  in  which  they  obtained  the 
moneys,  and  the  manner  by  which,  and  the  manner  in 
which  the  fraud  and  conspiracy,  and  breach  of  official 
duty  was  accomplished. 

All  these  facts  are  admitted  by  the  demurrer. 

To  these  admitted  facts  the  defendants  interpose  four 
several  defenses,  the  first  of  which,  I  think,  only,  it  will 
be  necessary  to  examine  at  much  length. 

The  second  defence  is,  that  the  complaint  does  not 
state  facts  sufficient  to  constitute  a  cause  of  action.  This, 
I  think,  has  no  merit.  I  do  not  stop  to  discuss  it.  A  pub- 
lic officer  has  made  a  disposition  of  moneys  in  his  hands, 
received  for  public  purposes,  in  a  manner  unauthorized 
by  law.  In  other  words,  he  has  been  guilty  of  a  breach 
of  trust  in  the  inisappropiation  of  such  moneys.  In  such 
a  case  he  ought  to  be  made  liable  to  somebody  for  mal- 
versation in  office. 

A  good  cause  of  action  clearly  exists  upon  the  facts  as 
set  forth. 

The  third  defense,  "  that  it  appears  upon  the  face  of 
the  complaint  that  there  is  a  defect  of  parties  defend- 
ants in  the  omission  of  the  Mayor,  Aldermen  and  Com- 
monalty of  the  city  of  New  York,"  is  not,  in  my  opinion, 
well  taken.  It  neither  appears  in  the  complaint 
that     the    Mayor.    Aldermen    and    Commonalty  of 


139 


said  city,  as  a  body  corporate.  participated 
in  the  alleged  fraud,  conspiracy  and  breach 
of  official  duty,  nor  is  it  shown  therein  that  such 
corporate  body  have  any  title  to,  or  interest  in  the  moneys 
so  raised,  and  so  fraudulently  obtained  and  converted. 
The  Legislature,  in  this  Act,  conferred  no  title  to  the 
moneys  which  came  to  the  defendants'  hands,  upon  such 
city  corporation  ;  they  are  not  named  in  the  Act.  and 
neither  the  sources  from  which  it  was  raised,  nor  the 
agents  by  whom  it  was  obtained,  were  made  subject  to 
the  corporate  control  of  snch  Mayor,  &c,  or  are  liable  to 
them  for  breach  of  duty. 

The  fourth  defence,  that  it  appears  upon  the  face  of 
the  complaint  that  there  is  a  defect  of  parties  defendant 
in  the  omission  of  "  the  Board  of  Supervisors  of  the  counry 
of  New  York,"  is  not,  in  my  opinion,  well  taken. 

The  complaint  shows  no  title  to  this  purloined  money 
in  the  Board  of  Supervisors. 

They  were  not  made  the  direct  agent,  or  instrumen- 
tality, to  raise  it,  to  hold  it  in  trust,  to  disburse  it.  or  to 
render  an  account  for  it  ;  or.  to  call  this  special  Board  to 
account  to  them;  nor  did  the  statute  confer  any  title  to 
it  upon  the  Board  of  Supervisors.  They  were  not  made 
responsible  for  its  honest  appropriation,  or  required  in 
any  manner  to  intermeddle  with  it.  or  with  any  balance 
or  surplus  of  it  remaining  over  ;  nor  were  they  authorized 
by  suit  or  otherwise  to  call  the  commission  who  were  en- 
trusted with  it,  to  account,  or  to  prosecute  for  any  fraudu- 
lent embezzlement,  larceny,  or  mismanagement  of  the 
fund  so  authorized  to  be  raised,  nor  for  any  breach  of 
trust,  or  of  official  duty  in  regard  to  it.  They  were  not 
made  liable  to  pay  the  bonds.  Nor  does  the  fact  that 
they,  the  said  Board  of  Superv  isors,  were  made  the  sub- 
ordinate instrumentality,  by  the  statute  under  the  taxing 
power  of  the  government,  to  levy  a  tax  at  a  subsequent 
day,  for  the  payment  <>f  the  bonds  so  authorized  to  be 
issued,  and  upon  which  the  money  was  raised,  confer  any 
title  in  them  to  the  moneys  so  dishonestly  obtained,  and 
retained  by  individuals  composing  the  Special  Board  of 
Trustees,  or  quasi  corporation,  created  by  the  Legislature 
for  that  special  purpose. 


140 


If  it  shall  turn  out  that  the  State  is  authorized 
to  bring  this  action  against  the  wrongdoers  alone, 
then  this  objection  is  immaterial  ;  then  the  action 
is  properlv  brought  against  this  Board  of  Auditors  for  the 
abuse  of  their  public,  trust,  and  against  their  co-conspira- 
tors. If  the  Attorney-General  is  not  authorized  to  bring 
the  action  then  this  objection  also  becomes  immaterial, 
rhe  action,  must  fail  upon  that  ground.  This  brings  the 
examination,  really,  to  the  only  question  in  the  case,  the 
right  of  the  people  to  bring  the  action. 

The  County  of  New  York,  previous  to  the  passage  of 
the  act  in  question,  like  other  counties,  had  a  prescribed 
general  system  of  government,  and  had  also  a  regular  or- 
ganization and  method  of  raising  means  for  the  discharge 
of  its  liabilities,  and  the  management  of  its  financial  in- 
terests. 

This  system  was  peculiar  to  itself,  certainly — some- 
what variant  from  that  of  other  counties,  because  of  its 
different  and  peculiar  condition  ;  but  it  was  a  system  in- 
tended to  be  suited  to  its  own  special  necessities.  It  was, 
nevertheless,  its  own  particular,  but  general  system.  The 
act  in  question  was,  in  one  particular,  a  mw  and  as  its 
title  expresses  it,  "  a  farther  provision  for  the  govern- 
ment of  the  county." 

This  new  provision  did  not  employ  any  established  re- 
gular organization  to  that  end.  but  created  a  new  Board 
with  special  powers  to  perform  certain  special  acts, 
which,  when  performed,  of  course,  exhausted  the  powers 
conferred  upon  this  special  committee. 

In  performing  these  specified  acts,  they  were,  by  ope- 
ration of  law,  constituted  trustees  of  the  moneys  so  to  be 
raised.  True,  the  organization  called  the  Board  of  Su- 
pervisors, were  directed  in  the  Act,  to  provide,  by  the 
usual  method  of  taxation,  the  means  to  pay  the  moneys 
for  which  this  special  commission  should  create  a  neces- 
sity; but  the  Board  of  Supervisors  were  thus  but  the  sub- 
ordinate agents  of  the  special  commission.  It  was  in 
the  pretended  performance  of  the  duties  imposed  by  this 
special  act,  that  this  specially  constituted  Board  commit- 
ted the  acts  charged  in  the  complaint.  It  will  be  seen 
that  this  Auditing  Board,  instead  of  personally  performing 


141 


that  duty,  delegated  their  trust,  hy  a  resolution  passed  by 
them  on  the  5th  of  May,  1870,  and  resolved  to  take  the 
certificate  of  their  delegate,  as  a  substitution  for  their 
duty  in  this  regard  ;  in  other  words,  refused  to  person 
ally  perform  the  duty. 

The  Legislature,  under  the  provision  of  Section  2  of 
Article  X  of  the  Constitution,  bad  power  lo  create,  and 
created,  a  new  hoard  of  officers,  and  conferred  upon  them 
special  powers,  authorizing  them  to  perform  certain  acts 
and  duties.  This  Act  was  without  any  express  provision 
for  the  accountability  to  the  said  Board  of  Supervisors, 
or  to  any  other  body. 

The  legislative  power  in  this  respect  is  sovereign. 

The  right  of  taxation  is  a  power  inherent  in  the  Govern- 
ment, and  may  he  legitimately  exercised  in  the  way  pro- 
vided by  this  Act;  and  it  is  not  restrained  by  the  Consti- 
tutional provisions,  that  private  property  shall  not  be 
taken  for  public  purposes  without  just  compensation,  nor 
from  providing  just  such  a  system  of  taxation.  Taxation 
is  based  upon  the  principle  or  theory,  that  the  tax-payer 
receives  a  corresponding  benefit  from  the  object  for 
which  the  tax  is  raised,  or  on  which  the  tax  is  to  be 
expended. 

In  the  case  at  bar,  the  statute  assumes  that  there  were 
liabilities  existing  against  the  county  of  New  York  which 
it  was  the  duty  of  tax-payers  to  meet  ;  it  appointed  an  in- 
dependent commission  or  special  board  of  three  individ- 
uals, who  were  required  to  audii  sucli  liabilities, and  con- 
ferred upon  tliem  the  power  to  raise  the  means  of  pay- 
ment thereof,  by  the  issue  of  revenue  bonds  of  the  county 
of  New  ^  oi  k,  separate  from  every  other  known  organ- 
ized system  to  that  end.  It  then  provided  a  plan  of  tax- 
ation through  the  Hoard  of  Supervisors  of  said  county,  a^ 
one  of  the  instrumentalities  of  this  new  s\ stem,  to  pay 
the  said  bonds.  No  moneys  were  obtained  or  to  be  ob- 
tained in  any  other  method  than  from  the  sale  of  bonds; 
and  no  more  mone\  could  lawfully  he  raised  than  just 
sufficient  to  pay  the  claims  that  were  to  be  audited. 

(Though  it  was  conceded  on  the  argument  that  new 
bonds  had  been  issued  under  the  Act  of  1871.  having  a 
longer  period  to  run,  as  a  substitution   for  the  bonds  of 


142 


187",  upon  which  the  moneys  were  raised ;  the  fraud 
alleged  to  have  been  committed  was  in  the  issue  of  the 
first  bonds.) 

These  provisions,  together,  completed  a  special  system 
of  taxation  upon  the  tax-payers  of  the  county  of  New 
York. 

It  was  upon  the  face  of  the  statute,  for  the  legitimate 
purpose  of  relieving  the  taxpayers  from  a  then  existing 
liability  or  indebtedness.  The  omission  of  the  Legisla- 
ture to  provide  in  this  enactment  a  plan,  or  provision,  by 
which  to  call  the  agent  of  this  system  to  account,  and 
guard  against  the  abuse  of  power  conferred,  created  no 
right  or  title  in  any  other  known  organized  body  of  men, 
corporate,  or  quasi  corporate,  to  sue  for  the  abuse  of  trust, 
or  for  the  moneys  which  have  been  fraudulently  appro- 
priated by  the  members  of  the  special  commission.  The 
statute  conferred  power,  without  any  accountability,  to 
the  Board  of  Supervisors ;  but  surely,  we  cannot  assume 
it  to  have  been  the  intention  of  the  Legislature  to  place 
this  body  of  commissioners,  and  the  trust  committed  to 
them,  above  the  power  of  the  law  to  reach  them  ;  or  the 
trust  committed  to  their  care,  to  be  beyond  its  protec- 
tion. We  must  not  assume  that  the  jurisprudence  of  the 
State  is  so  defective  and  inefficient ;  or,  that  the  Legis- 
lature intended  to  permit  these  trustees  to  appropriate  to 
their  own  use  the  money  intrusted  to  their  charge  for 
other  purposes. 

This,  doubtless,  was  an  abuse,  or  omission  in  legislation  ; 
but  1  can  find  no  more  legal  reason  in  this  case  for  join- 
ing the  Board  of  Supervisors  as  defendants,  than  of 
joining  the  Boards  of  Police,  or  Fire  Commissioners. 

The  Boards  of  Supervisors  were  a  mere  instrumentality 
to  carry  out  the  behests  of  this  special  commission. 
People  v.  Flagg,  46,  N.  Y.  405. 

It  may  not  be  denied  that  this  money,  in  moral  right, 
and  in  equity  and  good  conscience,  should  go  into  the 
treasury  of  the  county  of  New  York,  and  be  applied  to 
the  extinguishment  of  the  bonds  so  fraudulently  issued 
and  so  unjustly  imposed  upon  its  taxpayers  ;  and  in  that 
moral  sense  the  county  has  an  interest  in  obtaining  the 
moneys  to  that  end.    But  before  this  Court,  it  is  the 


143 


legal  right  of  this  county  to  he  made  Bach  party, 
that  is  the  question.  It  is  the  absence  of  any 
U'gal  title  and  legal  interest  conferred  by  statute 
law ;  it  is  in  the  absence  of  all  legal  statute  reme- 
dies, by  which  they  can  obtain  this  money  ;  and  it 
is  the  act  of  collusion  and  conspiracy  of  the  officers 
composing  the  organized  authorities  of  the  city  and 
county  that  represents  her  legal  interests,  and  which  re- 
fuses to  prosecute  the  offenders.  It  is  these  causes  which 
take  from  the  county  the  power  as  well  as  the  disposition 
to  prosecute,  which  presents  the  legal  question  as  to 
the  necessity  that  the  county  should  be  represented. 

That  it  would  have  been  most  appropriate  and  wise 
for  Legislature  to  have  made  a  provision  in  the  Act 
rendering  this  special  Board  liable  to  account  to  the  Hoard 
of  Supervisors,  is,  and  may  well  be  conceded,  but  it  is  not 
in  the  power  of  this  Court  to  supply  the  defect  It  is  not 
within  the  legitimate  sphere  of  judicial  action  to  add 
what  the  Legislature  has  omitted. 

Judicial  legislation  is  ever  (as  it  should  be)  odious. 
The  Legislature  chose  to  create  a  special  Hoard  without 
providing  for  their  accountability  to  any  one.     Now,  are 
we  any  the  more  called  upon  to  travel  beyond  our  sphere 
of  duty,  in  order  to  answer  the  repeated  interrogatory, 
"To  whom  does  this  money  belong?"     That  question  is 
not  raised  by  the  demurrer.    It  would  be  equally  legiti- 
mate to  enquire,  Does  it  belong  to  the  defendants  !;  and 
more  appropriate  to  enquire,  Does  it  belong  to  the  Board 
of  Supervisors?     Can  they  bring  suit  for  it  ?     Hut  two 
questions  really  arise  in  the  case  in  testing  the  quality  of 
the  pleadings,  viz  :  1st.  Is  a  cause  of  action  set  forth  in 
the  complaint  I  and.  2nd.  Is  the  plaintiff  authorized  to 
bring  the  action  j     What  shall  become  of  the  money 
when  recovered,  is  not  in  issue.    This  inquiry  is  calcula- 
ted to  divert  the  mind  from  the  only  legitimate  questions 
in  the  case,  \iz  :  Is  the  pleading  good?     It  suffices  upon 
this  point  that  we  are  unable  to  see,  as  is  alleged,  that  the 
Board  of  Supervisors  have  a  title  to  the  money  sued  for, 
which  imperatively  requires  that  they  should  be  made 
parties  defendants. 

It  is  claimed  by  the  defendant's  counsel,  that  the  in- 


144 

terest  <>f  the  Board  of  Supervisors  is  shown  in  the  fact  that 
the  first  deposit  of  the  money  raised  upon  the  said  bonds, 
having  been  made  with  the  Chamberlain  of  the  citv  of 
New  York,  who,  by  virtue  of  his  office,  happens  to  be, 
and  is,  County  Treasurer,  gave  title  to  it  to  the  county. 

To  this  it  may  be  answered,  this  special  Board  only, 
being  responsible  for  the  money,  had  power  to  deposit 
the  proceeds  of  such  bonds  in  the  bank,  or  other  safe  or 
convenient  depository,  and  to  draw  it  out  again,  accord- 
ing to  any  plan  or  system  they  chose  to  adopt.  No 
person  had  a  right  to  use  or  apply  it.  except  upon  the 
authority  or  order  of  this  Board,  by  their  proper  officer, 
to  whom  it  was  entrusted. 

If  this  special  Board  or  commission  chose  to  select 
any  bank,  or  any  city  or  county  officer,  or  other 
instrumentality,  for  convenience  for  deposit  or  payment, 
according  to  a  prescribed  form,  such  a  selection  by  uo 
means  changed  the  title  to  the  money.  It  was  the  Comp- 
troller only,  who  was  to  raise  the  money,  and  he  alone 
was  to  pay  these  claims,  and  they  were  to  be  paid  by  him 
by  moneys  to  be  raised  upon  these  bonds.  He  was  the 
sole  custodian  of  the  money,  not  the  County  Treasurer. 
This  was  a  fund  created  by  a  special  Act ;  it  was  to  be 
paid  out  only  upon  the  official  act  of  an  audit  by  the 
Board,  of  which  he  was  one.  It  was  to  be  applied  to  a 
specific  public  purpose,  and  was  payable  only  by  a  des- 
ignated public  officer,  appointed  for  that  express  purpose 
by  the  State.  This  appointment  made  him  a  trustee  of 
that  fund.  If  he  paid  it  into  the  county  treasury  in  any 
other  sense  than  as  his  depository,  it  was  so  paid 
contrary  to  law,  and  no  title  thereto  by  that  Act  was 
conferred  upon  the  county.  If  the  Act  of  the 
Legislature  did  not  create  or  designate  this  fund 
to  be  one  for  which  the  Board  of  Supervisors  was 
not  responsible,  or  confer  upon  them  an  interest  in  it, 
the  act  of  the  Comptroller,  in  selecting  a  city  office  as  a 
depository,  did  not  work  a  change  in  the  title  to  it. 

So,  too,  it  is  claimed,  that  the  form  given  to  the  bonds 
issued  by  this  special  Board,  it  being  in  the  name  of  the 
county,  and  binding  the  county  to  its  payment,  and  the 
form  of  its  authentication  being  that  the  Board  of  Su- 


145 


pervisors  had  caused  the  same  to  he  signed  by  the  Comp- 
troller, and  countersigned  hy  the  Mayor,  and  sealed  with 
the  common  seal  of  the  Board,  is  all  l>ut  conclusive  that 
moneys  to  he  raised  thereby  were  moneys  of  the  county, 
for  which  moneys  only  the  Board  of  Supervisors  could 
bring  an  action.  The  statute,  created  the  county  liability 
to  pay  the  bonds  ;  hut  I  am  unable  to  see  that  this 
special  Board  of  Trustees,  by  an  action  of  theirs,  or  by  the 
forms  they  employed  to  carry  out  the  object  of  the 
statute,  had  power  to  change  the  title  to  those  moneys, 
or  that  the  agencies  or  instrumentalities  they  employed 
in  its  management  could  have  the  claimed  effect,  even 
if  that  Board  had  intended  thereby  to  effect  such  a 
change.  Equally  immaterial  i>  it.  in  determining  this 
demurrer,  to  inquire  what  is  to  he  done  with  the  money 
when  recovered  I  It  is  not  a  question  raised  by  the 
pleading. 

If  the  Board  of  Supervisors  have  no  le»al  title  to 
those  moneys,  it  would  be  equally  pertinent  to  enquire, 
what  would  they  do  with  the  money  if  recoverd 
in  their  name '.  The  injury  complained  of,  in  this 
case,  is  not  one  that  affects  the  corporate  interest  of  the 
county  of  New  York,  or  their  corporate  property.  In 
contemplation  of  law,  no  money  arising  from  this  source 
was  paid  into  the  county  treasury.  None  was  authorized 
to  be  paid  in.  No  money  for  this  purpose  has  been 
drawn  from  the  county  treasury.  It  is  an  injury  which 
doeh  affect,  and  has  affected,  and  in  future  will  affect,  the 
private  interests  of  the  future  taxpayers  of  said  county; 
but  the  parties  so  injured,  it  is  well  conceded,  have  no 
remedy  by  action  at  law  for  the  injur"  sustained.  Doo- 
littlc  v.  Supervisors  of  Broome  County,  18  N.  V..  155. 

They  can  neither  individually,  nor  jointly,  nor  in  any 
corporate  capacity,  as  present  taxpayers,  bring  the  action. 
Attorney  General  r*.  Hastlake  11  Hare  R.,  225,  »/  160. 
I'p  to  this  period  of  time,  no  direct  private  interest  has 
been  invaded.  I  understand  the  rule  to  be  this.  When 
an  offence  against  the  public  has  been  committed,  which 
includes  a  private  injury,  the  private  injury  may  be  pro- 
secuted for,  in  the  name  of  the  injured  individual  ;  but 


U6 


not  so  when  the  injury  is  not  peculiar  to  himself,  but 
affects  a  whole  class  of  citizens  alike 

When  the  grievance  consists  in  the  illegal  exercise  of 
official  public  functions,  it  then  requires  that  the  action 
be  prosecuted  by  the  officer  who  has  been  appointed  by 
law  to  sue  in  suah  cases.  The  Act  of  the  Legislature, 
upon  its  face,  is  a  legal  and  valid  Act.  It  employed  the  in- 
strumentality »>f  a  special  board  of  officers  appointed  by 
the  so\  ereign  power  of  legislation,  to  raise  sufficient  money 
in  a  specified  manner  to  discharge  certain  liabilities;  but 
it  did  not  constitute  any  other  body  of  men  a  forum 
or  tribunal,  to  which  they  must  account.  Nor  did  the 
Legislature  confer  authority  upon  any  other  Board  to 
vindicate  the  individual  rights  of  the  injured  taxpayers; 
or  give  standing  in  Court  to  anybody  to  sue  for  abuse  or 
breach  of  trust.  Assuming  that  the  Board  of  Super- 
visors of  the  county  of  New  York  have  corporate  capa- 
city like  other  counties,  their  powers  of  suing  and  being 
sued  are  both  conferred  and  limited  by  statute.  They 
can  only  sue  and  be  sued  in  the  manner  prescribed  by 
law,  (1  li.  S.  Marg.,  p.  364,  §  1,)  and  no  county,  through 
their  Board  of  Supervisors,  shall  possess  or  exercise  any 
corporate  powers,  except  such  as  are  enumerated  in  the 
Revised  Statutes  in  the  same  chapter,  or  such  as  shall  be 
specially  given  by  law  {  Id.  S.  S.,  2).  No  power  is  found 
created  by  law  which  confers  upon  the  Board  of  Su- 
pervisors the  right  to  sue  or  be  sued  for  such  misconduct 
as  is  charged  against  the  defendants  in  this  action.  Even 
the  power  to  sue  and  be  sued  is  limited.  They  are  not 
liable  to  be  sued  for  debts  due  by  the  county.  (Boyce  /•. 
Supervisors  Cayuga,  20  Barb.,  295  ;  Chase  v.  Saratoga, 
33  Barb..  607  ;  Martin  v.  Greene,  29  N.  Y.,  647.)  If 
they  cannot  sue  or  be  sued  for  this  fraud,  how  can  they 
be  sued  for  the  moneys  obtained  by  it '.  How  can  they 
be  necessary  defendants '. 

I  am  not  able  to  see  in  the  fact  that  because  the  future 
taxpayers  of  the  county  of  New  York  are  made  to  pay 
liabilities,  through  the  form  of  taxation,  by  reason  of  the 
bonds  issued  by  this  special  legislative  commission,  that 
the  Board  of  Supervisors,  therefore,  became  parties  in 
interest  in  the  moneys  so  obtained  upon  the  bonds,  and  so 


1 


147 

fraudulently  appropriated  by  the  defendants.  Nor  ean  I 
see  in  the  fact  that  the  Hoard  of  Supervisors  are  made 
one  of  the  instrumentalities  of  raising,  by  taxation,  in  aid 
of  this  special  commission,  the  means  to  pay  such 
bonds,  that  they,  as  a  corporation,  ha\e  an  interest 
in  the  moneys  previously  obtained  and  previously  eon- 
verted  or  stolen.  They  are  made  the  Subordinates,  not 
the  superiors  of  this  special  commission.  The  whole  plan 
or  system  of  raising  the  money  in  question  was  a  new 
and  special  legislative  scheme  or  device.  The  board 
created,  acted  under  the  authority,  if  not  by  the  com- 
mand, of  the  sovereign  authority  of  the  State.  The  au- 
thority was  to  issue  bonds,  raise  money  and  pay  liabilities. 
But  it  cannot  be  held  that  because  the  taxation  to  meet 
the  liability  created  for  that  purpose,  was  to  be  effected 
through  the  instrumentality  of  the  Hoard  of  Supervisors 
or  other  officers  named,  that  the  latter  had  any  interest 
in  the  fund  so  to  be  raised. 

Xo  objection  is  raised  by  the  demurrer,  that  the  tax- 
pavers  of  the  county,  who  are  to  pay  the  bondholders 
who  advanced  their  money,  are  not  made  parties  defend- 
ants, and  we  therefore  take  no  time  to  discuss  such  pro- 
position.   We  proceed,  then,  to  the  real  point  in  the  case. 

The  first  objection  raised  by  the  demurrer,  L  regard  as 
the  main  and  real  question,  viz:  "That  it  appears  upon 
the  face  of  the  complaint,  that  the  plaintiffs  have  not 
legal  capacity  to  sue  in  this  action." 

The  action  is  brought  by  the  people  of  the  State  of 
New  York,  by  their  Attorney-General,  as  plaintiffs 
against  the  defendants,  for  neglige  ce  of  official  duty, 
and  fraudulent  misconduct,  and  for,  by  a  conspiracy, 
fraudulently  obtaining  and  receiving,  and  fraudulently 
appropriating  the  moneys  raised  by  them  as  public 
officers,  under  authority  of  a  statute  of  the  Legislature 
of  the  State.  The  negligent  omissions  and  the  fraudulent 
breach  of  duty  by  which  the  acts  were  committed,  are 
sufficiently  stated  in  the  complaint,  and  are  sufficient  to 
create  a  liability  in  favor  of  the  proper  party  ;  and  the 
demurrer  for  the  purpose  of  this  review  admits  the  facte 
charged.  The  simple  question  then,  is,  can  the  Attorney - 
(ieneral    of   this   State  bring   and  sustain  this  action 


148 


in  the  name  of  the  people  of  the  State  ? 
Has  the  State,  in  its  character  of  protector,  and  as  the 
natural  and  governmental  defender  of  the  whole  people 
and  of  each  class  and  portion  of  them,  a  right  to  inter- 
vene by  action,  to  that  end  ?  The  counsel  for  the  de- 
fendants meet  this  question,  first,  by  citing  the  111th 
Section  of  the  Code,  which  provides  that  every  action 
must  be  in  the  name  of  the  real  party  in  interest,  &c, 
and  insist  that  the  people  of  the  State  of  New  York  have 
no  interest  therein. 

It  can  hardly  be  claimed  that  this  provision  of  the 
Code  destroys  the  right  of  the  State  of  Xew  York  to 
bring  actions  in  behalf  of  the  people  in  all  that  class  of 
cases  in  which,  at  common  law.  that  right  then  existed. 
Nor,  that  it  extends  to  that  class  of  actions,  or  to  actions 
which  cannot  be  brought  under  the  practice  estahlished 
by  the  Code.  The  4fiSth  section  of  the  Code  ex- 
pressly provides,  that  if  a  case  shall  arise  in  which 
an  action  for  the  enforcement  or  protection  of  a 
right,  or  the  redress  or  prevention  of  a  wrong,  cannot 
be  had  under  that  Act,  the  practice  heretofore  in  use 
maj  be  adopted,  so  far  as  may  be  necessary  to  prevent  a 
failure  of  justice.  This  would  be  just  thatcase.  But 
the  right  of  the  Attorney-General  to  prosecute  was  netiher 
conferred  nor  taken  away  by  the  Code.  It  does  not 
abrogate  his  right,  and  is  not  repugnant  to  its  exercise. 
In  this  particular.  1  concur  with  theopinion  of  the  Court 
in  the  People  vs.  Miner,  '2  Lansing  399 — "  that  there  is 
nothing  in  the  Code  which  manifests  the  intention  to 
take  from  the  Attorney-General  any  of  his  common  law 
powers/' 

Another  of  the  answers  to  this  position,  is,  that  it  was 
a  rule  of  the  English  common  law  that  the  Attorney- 
General  is  a  necessary  party  in  all  suits  in  which  the 
Crown  is  interested,  and  in  this  State,  by  our  statute  (1 
Rev..  Stat.  Marg.,  p.  1  79.)  it  is  made  the  duty  of  the  Attor- 
ney-General to  prosecute  and  defend  all  actions  in  the 
event  of  which  the  pi  ople  of  the  State  shall  be  interested. 

This  places  him,  in  our  State,  in  the  same  relation  to 
the  government  as  does  the  common  law  in  England. 

2d.  The  complaint  alleges,  and  the  demurrer  admits, 


140 

that  the  State,  acting  through  its  Legislature  and  upon  the 
faith  of  the  State,  has  authorized  a  special  hoard  or 
commission  of  officers,  appointed  by  itself,  one  of 
whom  was  authorized  to  issue  certain  bonds,  and  upon 
which  bonds  the  credit  of  the  county  of  New  York  is 
pledged  that  they  shall  be  paid  at  maturity,  that  such 
bonds  have  been  issued  by  such  appointee  and  officer; 
that  the  proceeds  have  been  stolen,  appropriated,  or  em- 
bezzled by  a  conspiracy  of  the  said  appointees  or  public 
officers  and  certain  conspirators;  that  the  proceeds  are 
traced  to  the  hands  of  the  defendant ;  that  the  county  of 
New  York,  through  the  proper  and  legitimate  authorities, 
has  exhausted  all  means  of  taxation,  by  all  the  means 
provided  by  law,  to  pay  the  said  bonds,  and  that  they 
cannot  pay  them ;  that  such  bonds  can  only  be  paid  by 
another  exercise  of  the  sovereign  power  of  the  State, 
through  further  measures  of  taxation  ;  or,  by  an 
action  brought  by  the  State,  by  their  Attorney-General, 
to  recover  such  proceeds  from  the  hands  of  the 
officers  so  appointed  by  the  sovereign  power,  and  that 
this  peculiar  necessity  and  state  of  things  imposes  upon 
the  State  the  political  obligation  and  duty  to  exercise  the 
right  of  the  people  acting  through  their  Attorney-Gen- 
eral, and  according  to  the  Jaw  of  the  land,  to  bring  this 
action  to  demand  and  recover  possession  of  the  proceeds 
of  the  said  bonds,  now  so  unlawfully  in  the  hands  of  the 
defendants,  and  this  duty  and  necessity,  it  is  claimed, 
shows  such  an  interest  in  the  people,  as  authorizes  the 
bringing  the  action  in  their  name 

It  is  also  alleged  in  the  complaint,  stands  admitted, 
and  is  viewed  as  another  necessity  for  bringing  the  ac- 
tion,  that  the  defendants,  acting  in  fraudulent  collusion 
with  the  local  authorities  of  said  city  and  county  of 
New  York,  to  wit,  with  the  Mayor.  Aldermen,  and  Com- 
monalty of  the  city  of  New  York,  of  which  corporation 
the  defendant  Connolly  is  an  officer,  and  with  the  Board 
of  Supervisors  of  said  county,  of  which  body  the  defend- 
ant Tweed  is  a  member,  with  the  purpose  u>  impede, 
embarass.  and  delay,  and  if  possible,  to  defeat 
any  action  in  behalf  of  the  people,  and  to  enable  the  de- 
fendant to  escape  from  the  pursuit  of  justice,  through 


150 


the  direction  of  the  Mayor  of  the  City  Hall,  he,  the  said 
Mayor,  directed  the  Corporation  Counsel  of  the  city  of 
New  York  to  commence  six  several  actions  against  them- 
selves in  the  Supreme  Court  ;  three  in  behalf  of  the 
Mayor,  Aldermen  and  Commonality  of  the  city  of  New 
York,  one  against  each  of  the  defendants,  Tweed  and  Con- 
nolly, and  one  against  Hall,  the  Mayor,  solely  ;  and  three 
other  actions  in  behalf  of  the  Board  of  Supervisors  of 
the  county  of  New  York  ;  one  against  each  of  said  last 
named  defendants,  and  Hall,  solely;  that  the  said  six 
actions  were  intended  to  embrace,  in  point  of  form  and 
substance,  claims  for  satisfaction  of  all  the  frauds  of  the 
defendant  Tweed,  official  or  otherwise,  mentioned  or  re- 
ferred to  in  the  complaint  in  this  action,  and  all  other 
liabilities  of  the  said  Tweed,  Connolly,  and  Mayor  Hall, 
for  which  any  action  might  be  obtained  against  them,  or 
any  of  them ;  but  that  the  said  six  actions  were  com- 
menced fraudulently^ — in  bad  faith, — and  will  not,  and 
cannot  be  prosecuted  fairly,  beneficially,  or  usefully  to 
the  said  people,  or  to  any  public  interests,  inasmuch  as 
the  said  Hall  (  who  directed  the  said  actions)  is  governed 
by  such  evil  designs  and  intents,  and  has  complete  con- 
trol over  the  said  Counsel  to  the  Corporation.  And  they 
further  allege  that  no  other  suit,  action  or  proceeding 
can  or  will  be  had  or  taken  by  any  other  officer  or  au- 
thority of  the  said  city  or  county,  for  the  purpose  of  re- 
dressing the  said  frauds  and  wrongs  against  the  people  of 
the  State  of  New  York,  and  its  authority,  and  the  rights 
and  property  of  its  citizens,  or  of  recovering  the  public 
moneys,  so  fraudulently  appropriated  by  the  defendants  ; 
but  on  the  contrary,  the  said  Hall,  Mayor,  &c,  and  all 
other  officers  of  said  city  and  county,  having  any  power 
or  authority  in  the  premises,  intend  and  design  to  prevent 
any  such  action,  suit  or  proceeding,  or  any  redress  or  re- 
covery. 

This  fraudulent  combination  and  collusion  of  the  de- 
fendants with  the  local  authorities,  is  alleged  as  a  fact, 
and  is  urged  as  another  reason  why  it  became  the  duty 
of  the  people  to  institute  this  action  in  their  name. 
This  allegation  must  also  be  taken  to  be  true.  Not  less 
so  here  than  in  England,  is  the  Act  of  a  public  body, 


151 


corporate  or  incorporate,  acting  as  trustees  for  the  public 
interests,  which  affects  injuriously  a  whole  commnnity, 
a   public  wrong,  which   the  sovereign  power  is  hound 

0  redress.  I  think  it  may  he  laid  down  as  a  legal  propo- 
sition that  when  a  public  right  or  interest  is  invaded, 
which  requires  vindication  by  judicial  proceedings,  and 
especially  in  cases  in  which  either  no  other  remedy  ex- 
ists at  common  law.  or  when  by  collusion,  or  by  fraudu- 
lent design,  the  constituted  authorities,  whose  duty  it  may 
he  to  bring  an  action,  refuse  to  prosecute,  the  Attorney- 
General  representing  the  State  in  its  sovereign  capacity, 
may  sue,  and  that  whether  the  injury  to  the  public  in- 
terests affects  the  whole  people,  or  any  particular  or 
limited  organization  of  them.  If  this  be  not  so,  there 
may  be  wrongs  without  remedies. 

There  is  a  class  of  cases  in  the  English  Court  of  Chan- 
cery, where  it  is  found  that  the  sovereign  power  inter- 
venes to  represent  the  injured  parties,  for  the  reason  that 
they  are  prevented  from  comilig*intO  the  Court  upon  their 
own  account,  and  no  other  legal  party  can  be  found  to 
represent  them.  Attorney  General  VS.  Compton,  1  Young 
&  Collier.  417;  but  without  such  judicial  authority,  I 
think  the  principle  is  elemental. 

It  would.  I  think,  be  a  reproach  indeed  to  our  system 
of  jurisprudence,  to  declare,  that  it  provided  no  remedy 
for  such  an  atrocious  wrong  as  that  complained  of  in 
this  case,  and  as  is  admitted  upon  the  record.  Unless 
the  statute  cited  by  the  defendants,  cuts  off  all  remedy, 

1  think  our  jurisprudence  is  not  subject  to  that  reproach. 
Can  it  be  admitted  that  the  sovereign  power  of  this 
State  is  without  the  power  or  without  a  remedy  to  pro- 
tect itself  and  its  citizens  against  the  wrongs  committed 
by  its  own  agents  appointed  to  perform  a  public  trust  ? 
The  only  question  then  is,  can  that  remedy  be  enforced 
by  the  plaintiff  I 

The  anomalous  character  of  the  action,  or  the  novelty 
of  the  particular  complaint,  in  which  the  cause  of 
action  is  set.  forth,  is  no  objection  to  its  main 
tenauce,  provided  the  injury  set  forth  is  equitable,  by 
law;  shown  to  have  been  inflicted,  and  is  one  for  which 
the   people,  as  plaintiff,  can    bring  the  action.  The 


I.VJ 


statute,  it  is  claimed,  requires  the  real  party  in  interest  to 
bring  the  action.  Assume  then,  that  there  must  he  a  real 
party  in  interest.  What  is  the  character  of  that  interest? 
And  who  is  that  real  party  '.  It  is  not  the  suffering  tax- 
payers, as  we  have  shown.  Who  can  be  such  party  '.  No 
taxes  have  yet  heen  paid  on  this  account :  it  may  be,  that 
not  one  of  the  present  tax-payers  may  he  such,  when 
the  tax  shall  be  assessed,  or  when  the  bonds  become  due; 
and  they  cannot  now  allege  that  an  injury  is  done  to 
them.  If  it  were  so,  still  it  is  settled  that  they  could  not 
maintain  the  action. 

Doolittle  vs.  Supervisors  of  Broome  Co.,  IS  X.  Y., 
155. 

Roosevelt  vs.  Draper,  23  N.  Y. ;  318,  823;  29  X.  Y.,647  ; 

33  Barb.,  607.    Our  laws  furnish  them  no  relief . 

The  statute,  under  color  of  which  the  fraud  was  com- 
mitted, was  a  valid  statute  upon  its  face.  Xo  subsequent 
larceny  of  the  money  by  these  officers  changes  its  validity. 
It  is  not  the  bondholders  who  have  advanced  their  money 
in  good  faith,  under  the  provisions  of  a  valid  statute,  that 
can  bring  the  action.  As  yet,  they  have  not  suffered  ; 
besides,  the  faith  and  credit  of  the  eoiinry  of  New  York 
is  legally  pledged  for  the  payment  of  the  bonds.  They 
sustain  no  injury  until  the  maturity  of  the  bonds,  and 
default  in  the  payment  of  interest.     18  Wend.,  28  and  77  ; 

34  X.  Y.,  30.    It  is  not  the  city  corporation,  as  we  have 
already  shown.    It  is  not  the  body  called  the  Board  of 
Supervisors  of  the  county,  as  we  have  also  attempted  to 
show.    They  have  no  such  interest  as  entitles  them  to 
sue  for  the  alleged  fraud  and  breach  of  official  duty  of 
another  independent  Board.    It  is  not  a  fraud  against 
that  quasi  corporate  body.    They  are  not  made  by  law 
the  general  guardians,  or  protectors  of  the  rights  and 
interests  of  the  people  of  the  '*ounty,  or  clothed  with 
authority  to  sue  for  injuries  inflicted  upon  them  ;  much 
less  are  they  the  guardians  of  that  distinct  and  separate 
portion  of  the  people  called  tax-payers  of  the  county. 
The  grievance  is  not  common  to  all  the  people:  many 
of    the  inhabitants    are    not    taxpayers,    and  there 
are  doubtless    many    taxpayers    who  are    not  inhabi- 
tants  of   tiie  county.     That    portion    who    are  not 


153 


taxpayers  are  in  no  way  interested  in  the  question. 
Town  of  Guilford  vs.  Cornell,  18  Bark,  639.  There- 
fore the  importance  of  holding  the  Hoard  of  Super- 
visors strictly  to  the  powers  conferred  upon  them  by 
statute ;  and  the  power  to  sue  and  be  sued,  is  only  in 
the  cases  so  expressly  authorized.  They  possess  no 
common  law  powers  which  authorize  them  to  sue  ;  and 
neither  by  common  law,  or  by  statute,  is  this  Hoard 
the  representative  of  private  interests.  See  City  of 
Georgetown  v.  Alexandria  Canal  Co.,  12  Peters.  9$,  09  ;  16 
Ohio  State  R.,  320  ;  7  Ohio,  12  (Hammond)  C.md..  366. 
The  injury  is  not  one  affecting  the  corporate  treasury 
of  the  county.  The  injury  consists  in  the  fraudulent 
issue  of  bonds  by  the  Board  of  Auditors,  to  an  exces- 
sive amount.  Had  they  been  issued  for  only  the  true 
amount,  no  injury  would  have  occurred.  The  moneys 
raised  thereon  was  not  for  the  corporate  treasury  of  the 
county.  The  Hoard  of  Supervisors  had  no  right  to  ex- 
ercise control  over  it,  or  over  the  officers  authorized  to 
raise  it,  or  to  apply  it  to  county  purposes.  The  excess 
of  money  raised  by  this  Special  Board  of  Auditors, 
certainly  was  not  raised  1>\  authority  of  law.  or  for  the 
henefit  of  the  county  ;  nor  for  certain  creditors  of  it ; 
and  it  cannot  be  shown  that  any  power  <>r  authority 
exists  at  law,  by  which  the  county,  or  it>  Hoard  of  Su- 
pervisors, became  possessed  of  a  legal  title  thereto, 
for  which  they  could  bring  an  action,  or  were  made  liable 
to  an  action  upon  the  bonds,  or  for  the  money  raised 
thereon ;  and  I  find  nothing  in  the  Act  of  I  m'>4,  chap. 
405,  that  applies  to,  or  changes  the  effect  of  the  pro- 
visions of  the  Act  under  which  the  alledged  frauds  were 
committed. 

This  Act  of  1864,  upon  its  face,  makes  each  tasepayer 
a  cestui  tjue  trust,  equally  of  the  Common  Council  of 
the  city,  and  of  the  Board  of  Supervisors  of  the  comity. 
Hut  of  what  '.  It  also  makes  each  of  those  organized 
bodies,  equally,  and  makes  the  several  members  thereof, 
trustees  of  the  taxpayers.  Hut  of  what  does  it  make 
them  trustees  ?  "Of  the  property,  funds,  and  effects  of 
said  city  and  county,  so  far  as  such  property,  funds 
and  effects  are,  or  may  be  committed  to  their  charge 


154 


or  control."  If  tin's  was  a  valid  Act.  which  is  denied  ;  if  it 
was  in  full  force  and  had  application,  which  is  also 
denied,  it  was  still  an  Act  subject  to  be  changed  by  the 
Legislature,  and  this  is  what  was  done.  The  Legislature, 
by  the  Act  of  1S7<»,  took  from  these  organized  corpora- 
tions, and  the  members  thereof,  the  trust  so  committed 
to  them  and  to  their  charge,  and  conferred  the  trust  and 
committed  all  such  property  for  a  specified  purpose  to  a 
new  commission,  authorizing  ihe  latter  to  create  new 
liabilities  upon  the  taxpayers.  To  this  extent  the  Acts 
of  1S70  dissolved  the  trust  committed  to  the  Common 
Council  and  the  Hoard  of  Supervisors,  so  created  by  the 
Act  of  1864  ;  and  the  Act  of  187<»  omitted  to  make  the 
cestui  que  trusts  of  "this  new  commission,  the  Board  of 
Auditors."'  or  of  any  one  of  them.  So  that  neither  the 
Board  of  Supervisors  of  the  county,  nor  the  Common 
Council  of  the  city,  could  be  accountable  as  Trustees, 
for  the  acts  of  the  Board  of  Auditors,  and  therefore 
neither  has  any  interest  in  those  moneys  as  trustee,  so  as 
to  entitle  it  to  sue  for  them. 

Nor,  do  I  think  the  Revised  Statutes  (vol.  2,  page  473, 
marginal  paging,  §  ln5,  (92),  extends  to  this  case.  That 
section  only  gives  authority  to  the  Board  of  Supervisors 
to  bring  actions  upon  contracts  made  with  them,  or  their 
predecessors  in  their  official  character  /  to  enforce  any 
liability  or  duty  enjoined  by  law,  to  such  officers  or  the 
hotly  which  they  represent,  and  to  recover  damages  to  the 
property  or  rights  of  such  officers,  or  the  body  they 
represent.' 

If  I  am  in  error,  in  this  construction,  as  it  will  be 
shown  hereafter,  it  does  not  affect  the  right  of  the  At- 
torney-General to  bring  this  action. 

This  special  commission  appointed  by  the  Legislature, 
whether  or  not  they  were  a  corporation  or  a  quasi  cor- 
poration, it  is  not  material  to  inquire.  It  is  sufficient  to 
say,  they  were  created  by  an  Act  of  the  State  public 
officers,  and  were  invested  with  certain  specified  powers 
as  such,  to  be  exercised  for  special  and  limited  purposes ; 
but  it  was.  nevertheless,  clearly  a  public  trust,  to  be  exe- 
cuted for  confessedly  public  purposes.  They  were  not 
created  the  agents  of  the  county  of  Xew  York,  or  of  the 


155 

Board  of  Supervisors  in  their  corporate  capacity.  Lorri- 
lard  r.  Town  of  Monroe,  1 1  N.  V..  3!>5.  The  county 
could  not  he  sued  or  made  responsible  for  the  manner  in 
which  they  discharged  the  dn  ties  of  their  offices,  for  their 
breach  of  duty,  for  misfeasance,  or  nonfeasance,  or  for 
frauds,'collusions,  conspiracy, or  embezzlements  of  money. 
This  Special  Board  of  Audit  were  not  county  officers. 
See  Constitution.  Art.  10,  ^  •>.  As  the  Legislature 
possessed  the  power  under  tins  article  and  section  of  the 
Constitution  to  appoint  these  officers,  they  were  as  truly 
public  officers  when  so  appointed  as  the  highest 
official  functionaries  in  the  State.  The  Legislature, 
under  the  Constitution,  had  no  power  to  appoint 
or  make  "county  officers."  Nor  had  this  Hoard 
of  officers  power  in  the  exercise  of  their  functions,  to 
act  as  "  county  officers.''  Sheboygan  Co.  v.  Parker,  4 
Wallace,    U.  S..  Even  though    the  exercise  of 

their  powers  did  relate  immediately  to  the  interests  of  the 
county.  How,  then,  could  any  organized  body  of  county 
officers  call  them  to  account  I  Nor  is  it  necessary  to  call 
them  State  officers  because  they  were  appointed  by  the 
State;  it  i>  sufficient  that  they  were  public  officers — ad- 
ministrative officers.  How,  then,  can  the  Hoard  of  Su- 
pervisors of  the  county  be  a  necessary  party  defendant  I 
Who,  then,  can  bring  the  action  to  defend  this  wrong? 

It  was  within  the  province  of  the  government  of  the 
State,  by  legislation,  to  pass  acts  to  provide  for  the  wel- 
fare of  the  whole  Community,  and  secure  the  welfare  of 
all  her  citizens,  or  of  any  limited  portion  of  them,  or  of 
any  municipality  within  it.  The  power  of  the  govern- 
ment over  all  the  property  within  its  limits  for  this  pur- 
pose, was  never  surrendered,  and  the  government  of  the 
county  of  New  York  is  only  a  part  of  the  State  organ- 
ization to  that  end.  subordinate  to  that  id'  the  State. 
People  v.  Flagg,  4(5  X.  V..  4"4  .">. 

The  municipality  of  the  eoiintx  of  New  V<>il<  cannot 
allege  that  the  legislation  in  question  was  not  fur  the 
public  good.  The  Legislature  i>  the  complete  and  final 
judge  of  what  the  public  interest  and  general  good  re- 
quire to  be  done,  and  of  what  is  needed  for  any  particu- 
lar purpose.      They  devised  this  new  machinery,  under 


156 


the  taxing  power  of  the  State,  and  they  conferred  upon 
their  appointees  important  public  functions.  The  right 
of  the  Board  of  Supervisors  to  exercise  power  over  the 
property  within  her  limits  is  only  to  the  extent  conferred 
by  statute,  and  is  subordinate  to  and  subject  to  the  su- 
preme authority  of  the  State,  so  far  as  the  latter 
chooses  to  exercise  her  power  by  legislation  within  con- 
stitutional limits,  for  the  public  interest.  Id.  When 
the  State  has  so  exercised  her  power  by  legislation, 
and  by  the  selection  of  its  own  agents  or  officers, 
unless  such  new  officers  are  made  accountable 
to  the  local  organizations  of  the  county,  the  latter  possess 
no  power  over  them.  (The  town  of  Guildford  V.  The 
Supervisors  of  ( !henango,  L3  X.  Y.,  149  ;  Davidson,  Mayor 
of  Xew  York,  2  Robertson's  R.,  244.) 

It  is  not  because  the  acts  of  this  new  Board,  under  pro- 
visions of  this  statute,  leads  to  taxation  of  its  citizens, 
that  the  money  previously  obtained  by  this  Board  creates 
it  the  public  money  of  the  county. 

If  the  trust  had  been  faithfully  executed  by  these 
officers,  there  would  have  been  no  money  belonging  to 
the  county  of  Xew  York  ;  and  it  is  not  made  plain  that 
moneys  obtained  by  breach  of  trust  and  by  the  frauds, 
conspiracies  and  collusions  of  this  special  legislative 
Board,  enure  to  the  benefit  of  a  local  organization,  and 
thus  authorizes  them  to  sue  or  be  sued.  The  means  in- 
tended to  be  provided  by  this  Act  of  the  Legislature,  if 
honestly  executed,  was  reasonably  adapted  to  the  pur- 
poses in  view.  It  did  not  anticipate  or  authorize  the 
possession  of  moneys,  beyond  the  actual  needs,  to  pay  ex- 
isting liabilities.  These  debts  and  liabilities  are  paid.  All 
beyond  that  was  obtained  by  fraud  ;  in  fraud  of  the  law  ; 
in  fraud  of  the  trust,  and  by  fraud  of  these  public  officers 
against  the  future  tax-payers. 

The  Board  of  Supervisors  obtain  no  title  to  these 
moneys  by  reason  of  such  a  fraud;  fraud  does  not  con- 
fer title,  nor  does  its  results  enure  to  the  benefit  of  this 
corporation.  The  Board  of  Supervisors  had  no  control 
over  the  legal  acts  of  this  Board  of  Auditors.  They  have 
none  over  the  moneys  they  obtained  by  their  illegal  acts 
This  excess  of  money,  beyond  the  necessities  of  the  law, 


157 


was  not  raised  by  authority  of  law.  or  for  the  benefit  of 
the  county  of  New  York.  The  title  to  this  money  is  no 
better  than  if  it  had  been  stolen.  It  is  entirely  unlike  the 
eases  of  money  raised  by  taxation  through  the  regularly 
constituted  authorities  under  an  illegal  tax  or  assessment, 
and  the  proceeds  paid  into  the  county  treasury,  or  ex- 
pended for  the  uses  of  the  county.  Newman  vs.  Suiter- 
visors  of  Livingstone  County,  45  X.  V.,  676  ;  Bank  of 
Commonwealth  vs.  Mayor.  &c,  of  New  York.  682  : 
People  Ex.  Rel.  Mygatt,  11  X.  Y..  563. 

The  machinery  under  which  this  outrage  was  com- 
mitted was  created  by  State,  not  county,  authority.  It 
becomes  the  State  to  assert,  if  it  may,  its  vindicatory 
power  in  bringing  the  offenders  to  justice. 

In  nearly  every  organized  representative  body,  corpo- 
rate or  quasi  corporate,  who  are  entrusted  with  public 
funds,  whose  officers  are  annually  or  periodically  elected, 
the  body  has  continued  existence  notwithstanding  the 
change  of  its  officers.  In  these  cases  provision  is  made 
by  law,  as  we  have  seen,  for  the  incumbent  of  the  office, 
in  his  own  name  or  name  of  office,  or  in  the  name  of  the 
municipality  he  represents,  to  bring  action  for  moneys  in 
the  hands  of  the  predecessor  in  office.  But  such  action 
can  only  be  brought  by  virtue  of  statute  authority.  Nb 
such  provision  exists  in  relation  to  this  Board  of  Audit. 
They  have  no  succession  ;  they  exhaust  all  their  own 
powers  as  a  Board  ;  and  the  statute  has  omitted  giving 
the  power  to  call  them  to  account.  In  this  it  differs  from 
the  regular  organization. 

The  defendants  place  themselves  upon  the  ground  that 
the  State  has  no  right  to  bring  the  action. 

But  if  it  be  true,  and  because  neither  of  the  classes  of 
citizens  mentioned,  nor  either  of  the  corporations  or 
organized  bodies  named,  nor  any  other  officer  or  person, 
by  statute,  can  sue  these  wrongdoers,  or  call  them  to  ac- 
count for  this  official  wickedness,  the  law.  still,  will 
not  afford  them  impunity,  and  it  is  not  to  be  held  so 
weak  or  defective  that  no  remedy  whatever  exists  against 
the  transgressors.    (Adsit  v.  Brady,  4  Hill,  63(1.) 

The  old  common  law  maxim,  "  Uhi  JtU  ibi  raiM- 
diuni"  remains  unimpaired.    That  there  is  no  wrong 


158 


without  a  remedy  in  the  jurisprudence  of  New  York,  is 
a  doctrine  I  am  prepared  judicially  to  assert.  This 
maxim  was  a  part  of  the  common  law  of  England.  It 
followed  our  ancestors  here  and  became  a  part  of  the 
colonial  law.  It  was  adopted  into  the  State  Constitution 
of  1777,  §35,  and  it  has  never  been  abrogated.  Lord 
Coke  says:  "The  law  will,  that  in  every  case  where  a 
man  is  wronged  and  endamaged,  that  he  shall  have  a 
remedie "  (Co.  Litt.,  197.) 

This  maxim  was  regarded  so  valuable  in  English  juris- 
prudence, that  the  judges  invented  a  form  of  action,  pur- 
posely, to  carry  it  into  effect,  called  an  action  on  the  case  ; 
and  for  its  further  security,  the  Statute  of  Westminster, 
2,  in  the  13th  year  of  Edward  I,  Chap.  24,  was  passed  to 
quicken  the  diligence  of  the  clerks  in  chancery,  whose 
duty  it  was  to  invent  precedents  in  new  cases  under  some 
right,  requiring  a  remedy.  This  statute,  13.  Edw.,  gave 
direction  to  the  Clerks  of  Chancery  to  agree  in  making 
such  writs;  "  or  the  plaintiffs  may  adjourn  it  until  the 
next  Parliament  by  consent  of  men  learned  in  the  law: 
a  writ,  it  says,  shall  be  made,  lest  it  might  happen  after 
that,  the  Court  should  long  time  fail  to  minister  jiistice 
to  complainants.'''' 

From  thenceforth,  until  the  adoption  of  our  State 
Constitution,  and  ever  since,  this  maxim  that  "  there  is  no 
wrong  without  a  remedy,"  has  been  the  doctrine  of  the 
English  and  American  systems  of  jurisprudence. 

Here,  no  less  than  in  England,  and  in  the  other  civi- 
lized nations  of  the  earth,  is  it  the  duty  of  the  State,  in 
its  sovereign  capacity,  and  as  protector  of  its  citizens 
against  wrong,  when  no  other  method  is  appointed  by 
law,   to  furnish  a  remedy. 

Lord  Hardwicke,  the  distinguished  Lord  Chancellor  of 
England,  in  the  case  of  the  Charitable  Corporation  agt. 
Sutton  and  others,  2  Atkyns,  406,  said  :  "  The  tribunals  of 
this  Kingdom  are  wisely  formed,  both  of  courts  of  law 
and  Equity,  and  so  are  the  tribunals  of  most  other  na- 
tions;  and  for  this  reason  there  can  be  no  injury,  but 
there  must  be  a  remedy,  in  all  or  some  of  them,  and 
therefore,  1  will  never  determine,  that  frauds  of  this  kind 
are  out  of  the  reach  of  the  Courts  of  Law  or  Equity,  for 


159 


an  intolerable  grievance  would  follow  from  such  a  de- 
termination." "  Hot  "•/'// 1  ever  determine  that  a  Court 
of  Equity  cannot  lay  hold  of  every  breach  of  trust,  lei 
the  person  be  guilty  of  it.  either  in  a  private  or  public 
capacity." 

Lord  Hedesdale,  in  the  ease  of  the  Attorney- 
General  vs.  The  Mayor,  Are.,  of  the  city  of  Dublin. 
1  Bligh,  N.  S..  p.  341,  said:  "'If  is  expedient  in  such 
cases  that  there  should  he  a  remedy,  and  highly 
important  that  persons  in  the  receipt  of  public  moneys 
should  know  that  they  are  liable  to  ac.-ount  in  a  Court 
of  Equity,  as  well  for  the  misapplication  of,  as  for  the  with- 
holding of  funds."  Then  he  supposes  a  ease  of  one  having 
some  charge  of  such  funds,  who  embezzles  or  misapplies 
them,  or  who  rendered  imperfect  or  fabricated  accounts 
of  them,  and  said.  ••  Could  not  the  Attorney-General,  up- 
on discovery  of  the  fraud,  proceed  by  information  to  re 
cover  the  moneys  '." 

In  the  case  of  Innes  vs.  Lansing,  7  Paige  R, 
Chancellor  Walworth  said  :  "  Whenever  the  Leg- 
islature creates  new  rights  in  parties,  for  the  protec- 
tion and  enforcement  of  which  rights  the  common  law 
affords  no  effectual  remedy,  and  the  statute  itself  does 
not  prescrihe  the  mode  in  which  the  rights  are  to  be  pro- 
tected, this  Court,  in  the  exercise  of  its  acknowledged 
jurisdiction,  is  hound  to  gvoe  <r  party  the  relief  to  (/•/,/'<■/, 
he  is  equitably  entitl<d  under  the  statute."'  Actions  in  the 
name  of  the  people  by  the  Attorney  General  against 
corporations  for  the  abuse  of  authority ,  are  common  in 
this  State:  People  VS.  Mayor  of  New  York.  !•  Abbott 
R.,  253;  Carne  vs.  Same.  L'll  id.,  144;  Attorney-General 
/•.v.  Cohoes  (  '<>•.  6  Paige,  133.  are  instances. 

The  rule  laid  down  in  Attorney-General  vs.  Coinpron, 
1  Young  »fc  Collier,  -117.  is  this,  that  where  property  is 
affected  by  a  public,  trust,  it  is  in  the  hands  of  those  who 
hold  it  devoted  to  that  trust;  and  that  the  Crown  is  en- 
titled by  its  officer  to  intervene  for  the  purpose  of 
asserting,  in  behalf  of  the  public  and  the  public  interest, 
that  public  light  which  probably  no  individual  can  be 
found  effectually  to  assert,  even  if  the  interest  were  such 
as  to  allow  it. 


160 


If  this  remedy  in  behalf  of  the  State  does  not  exist  in 
this  case,  it  may  he  safely  asserted  that  there  is  no  body, 
officer,  functionary.  <>r  person  found,  upon  whom  the 
right  devolves  if  this  be  so.  then  it  appears  to  me. 
indeed,  it  must  be  said  that  the  public  are  remediless  against 
such  wrongs,  and  it  may  then  be  proclaimed,  that  in  the 
State  of  New  York  alone,  that  wise  and  ancient  maxim 
of  the  common  law.  ujji  jus  >l>i  reim-ilium,  has  been 
cast  out  of  her  jurisprudence. 

It  does  not  follow,  that  because  the  State  cannol 
be  sued  or  made  a  defendant  for  the  misfeasance  of  its 
agents  that  it  is  not  liable  to  its  citizens  for  such  damage 
done  to  their  interests  ;  and  the  State  may  be  made 
trustee  for  the  citizens  in  regard  to  such  interests  ;  nor 
does  it  follow,  that  as  trustee  it  may  not,  as  plaintiff, 
sue  to  recover  such  damage.  In  this  case,  under  the 
exercise  of  the  taxing  power,  it  has  authorized  its  agents 
to  take  private  property  of  the  citizens;  and  to  the 
amount  of  the  excess  of  property  taken,  it  is  done 
without  making  just  compensation.  That  the  State  can- 
not be  sued,  does  not  relieve  them  from  liability  for 
the  damage  which  they  have  illegally  and  unjustly 
inflicted  upon  the  public.  The  State  may  prosecute  as 
plaintiff.  The  State,  therefore,  as  we  have  said,  owes  a 
duty  to  the  citizen  to  redress  this  injury  and  to  dis- 
charge the  liability  so  incurred.  This  creates  uot  only 
an  inferest.  but  also  a  duty,  to  bring  an  action.  See 
Coster  vs.  The  Mayor, &c,  of  Albany.  43  X.  Y..  3!*9. 

The  question  returns,  have  the  people  of  this  State 
such  an  interest  in  this  action  that  they,  by  their  Attor- 
ney-General, may  prosecute? 

We  have  no  statute  which  defines  or  limits  the  powers 
of  the  Attorney-General  of  the  State  or  which  changes 
the  common  law. 

We  have  various  statutes  which  impose  new  duties  and 
confer  new  powers  upon  him,  and  there  is  one  general 
provision  making  it  his  duty  to  prosecute  and  defend  all 
actions  in  the  event  of  which  the  people  of  this  State  are 
interested.  His  powers  were  well  understood,  as  they 
existed  at  common  law  in  England. 

He  was  allowed  to  prosecute,  without  limitation  im- 


161 


pediment,  or  delay,  all  offences  or  matters  that  immedi- 
ately affected  the  interest  of  the  State.  Insulted  the  aov- 
ereign,  scandalized  the  credit,  or  endangered  the  security 
of  government.  See  Woodeson's  Lect..  vol.  2,  p.  335. 
And  he  was  the  especial  representative  of  the  Crown  in 
tiling  informations  to  correct  abuses  or  misapplication  of 
trust  funds  held  for  charitable  uses,  and  of  municipal 
funds,  raised  by  local  taxation  for  local  purposes,  which 
were  regarded  as  funds  of  the  proper  administration  of 
which  the  King,  as  u parens  j><itri<i could  demand  an 
account  or  remedy  in  a  Court  of  Equity,  through  his  At- 
torney-General. This  was  held  in  the  case  of  Attorney- 
General  vx.  Brown,  1  Ssvan^ton,  Ch.  K.,  pages.  265-300, 
301,  && 

This  common  law  was  the  law  of  our  (  olonial  Gov- 
ernment. The  Attorney-Genera]  under  the  Colonial 
Government,  from  1664  to  the  year  17<»2,  received  his  ap- 
pointment from  the  Govurnor  of  the  Colony,  and  exer" 
cised  his  duties  with  no  change  of  the  common  law. 
From  the  latter  year  until  the  Revolution  he 
was  commissioned  by  the  Crown.  He  still  possessed 
all  these  powers  under  the  Colonial  government  without 
change.  At  the  adoption  of  the  first  (  onstitutioii  of  the 
State  in  1777,  it  was  declared — "  That  aueh  partB  <f  th- 
Common  Law  of  L'ngland and  the  Statute  Law  of  Eng- 
land, and  of  Great  Britain,  and  the  Act*  <>r  the  Legit- 
latare  of  the  Colony  of  New  York,  a*  did  together  form 
the  Law  of  the  said  Colon;/  on  the  VMh  of  April,  177"'. 
shall  be  and  continue  the  Ian;  of  this  State,  subject  to 
such  alterations  and  provisions  as  the  Legislature  of  r  1  i i — 
State  shall  from  time  to  time  make  concerning  the 
same." 

While  the  Legislature  have  from  time  to  time  added 
new  powers  and  duties  to  the  office  of  Attorney-General, 
1  am  not  aware  tbat  they  have  ever  abrogated  or  changed 
any  of  the  powers  of  this  officer,  that  existed  at  Common 
Law  in  England  and  the  Colonies,  in  relation  to  such  sub- 
jects as  we  have  above  referred  to,  to  wit :  that  of  correcting 
abuses  in  the  misapplication  of  trust  funds  for  charitable 
uses,  and  which  included  ///  uniciptU  fkmttt  roiled  /<</ 
local  taxation  /  nor  can  I  discover  that   Mich  Common 


162 


Law  powers  have  become  repugnant  to  the  established 
laws  and  institutions  of  this  State,  so  as  to  render  them 
obsolete. 

The  office  of  Attorney-General,  though  an  existing 
office,  was  not  mentioned  in  the  Constitution  of  1777,  but 
in  the  Constitution  a  body  of  men,  called  "  a  council  of 
appointment"  was  created  and  authorized  to  till  all  offi- 
ces not  named  in  the  Constitution.  Sixteen  different  per- 
sons received  appointments  to  the  office  of  Attorney- 
General  from  this  power.  Neither  under  subsequent 
( ionstitutions,  or  Acts  of  the  Legislature  passed  under 
them,  has  there  been  any  change,  limitation,  or  specifica- 
tion of  the  powers  and  duties  of  this  office,  except  to  such 
new  duties  as  have  been  fiorn  time  to  time  created,  and 
in  which  new  powers  were  conferred  for  their  due  execu- 
tion. His  powers  and  duties,  therefore,  in  my  opinion, 
are  now  in  this  State,  such  as  have  existed  at  common 
law  from  a  period  long  before  our  existence  as  a  Colonial 
or  State  Government;  and  such  as  have  existed  and  been, 
or  might  have  been  exercised  at  all  times  since,  with  the 
exception  of  such  new  powers  and  duties  as  have  been 
added  by  statute. 

Upon  this  point,  I  entirely  concur  with  what  was  said 
by  the  Court,  in  the  ith  Department,  in  the  case  of  the 
People  vs.  Miner,  2  Lansing  399,  viz :  "  \s  the  powers 
of  the  Attorney-General  were  not  conferred  by  statute, 
a  grant  by  statute  of  the  same  or  other  powers  would  not 
operate  to  deprive  him  of  those  belonging  to  the  office  at 
common  law,  unless  the  statute,  either  expressly  or  by 
reasonable  intendment,  forbade  the  exercise  of  powers 
not  thus  expressly  conferred,  lie  must  be  held,  there- 
fore, to  have  all  the  powers  belonging  to  the  office  of 
Common  Law,  and  such  additional  powers  as  the  Legis- 
lature has  seen  fit  to  confer  upon  him."  So,  too,  it  was 
held  by  Hogeboom,  J.,  in  the  People  vs.  The  Mayor  of 
New  York,  32  Barb.,  102,  as  follows :  "  Where  there  is  a 
clear  violation  of  law,  or,  a  clear  misuse  or  abuse  of  its 
corporate  powers  on  the  part  of  a  municipal  corporation, 
the  people,  as  representing  the  general  public — the  body 
of  citizens  who  are  aggrieved — are  the  proper  parties  to 
enforce  such  remedy." 


163 


I  am  referred  to  manuscript,  unreported  decisions 
to  the  same  effect,  in  the  following  cases:  The  People. 
ex.  /•<■/.  Pock  v.  Gardner.  Moore  and  others,  arising  in  the 
6th  Judicial  District,  in  which  the  opinion  was  written  by 
Parker.  .1.  Another,  in  the  same  district,  in  the  case  of 
the  People  <sa>.  rel.  Proctor  v.  Swartout,  opinion  hv  Mason. 
•I.;  and  another  case  arising  in  the  third  judicial  district, 
in  the  case  of  the  People  ex.  rel.  Thompson  /•  Benedict, 
and  others.  This  was  at  General  Term,  held  by  Etoge- 
hoom  and  Miller.         Ilogehoom  writing  the  opinion. 

The  rule  is  the  same  in  the  English  Courts.  In  the 
case  of  the  Attorney-General  vs.  Birmingham  and  Oxford 
Railway  Co.,  the  Lord  Chancellor  said :  "  I  have  attended 
to  all  the  cases  that  have  heen  cited,  and  they  all  fall 
within  well  recognized  principles,  that  where  act>  are 
being  done  injurious  to  the  public  inierests.  inasmuch 
as  the  public  interests  might  otherwise  he  altogether; 
neglected,  the  Attorney-General  has,  in  such  a  case,  not 
in  a  case  of  private  injury,  the  authority  to  represent 
the  public.  8  Eng.  Law  and  Equity,  '24->.  i'+7.  From 
what  I  have  said,  1  think  the  following  conclusions 
may  he  adopted  from  the  case,  as  it  is  presented  upon 
the  pleadings  to  us  : 

1st.  That  the  case  shows  an  existing  cau&e  of  action 
ayainst  the  defendants. 

2d.  That  under  our  system  of  jurisprudence,  a  remedy 
exists  for  this  cause  of  action. 

3d.  That  the  Mayor,  Aldermen,  and  Commonalty  of 
the  city  of  New  York  have  no  such  interest  in  the  action 
as  requires  that  they  should  he  made  defendants  therein. 

•itli.  That  the  Board  of  Supervisors  of  the  County  of 
New  York,  have  no  such  interest  in  the  action,  as  re- 
quires that  they  should  he  made  defendants  therein. 

5th.  That  by  the  law  of  the  land,  the  people  of  the 
State  of  New  York  have  such  an  interest  in  the  action, as 
entitles  them  to  prosecute  t tie  same. 

First,  it  is  the  duty  of  the  people  of  the  State  to  bring 
the  action. 

Taxation,  and  the  liability  to  taxation,  through  which 
the  citizen  contributes  or  becomes  liable  to  contribute  "t 

his  property  to  demand.-  of  the  State  through  the  sover- 


164 


eign  power  of  legislation  for  the  public  interests,  is  the 
price  he  pays  for  governmental  protection,  and  for  the 
safe  enjoyment  of  the  remainder  of  his  estate. 

For  this  consideration,  the  State,  as  the  sovereign,  ow&s 
a  duty  to  the  citizen,  to  afford  him  a  protection  against 
injury  and  loss.  These  duties  are  correspondingly  re- 
ciprocal. 

The  duty  of  protection  includes  that  of  providing  a 
remedy  for  injuries  to  person,  life,  liberty  and  property. 

In  this  case  it  is  seen  that  the  State,  through  its  sove- 
reign power  of  legislation,  and  the  appointment  to  office 
thereby  of  a  commission  of  its  own,  has  created  a  pecu- 
niary liability  upon  a  portion  of  its  citizens  to  an  amount 
exceeding  six  millions  of  dollars. 

The  commission  so  appointed,  have,  by  fraud,  by  com- 
bination and  conspiracy,  and  under  color  of  such  legisla- 
tion, created  a  liability  upon  such  citizens  to  an  amount 
greatly  exceeding  the  demands  to  be  met.  or  the  public 
necessities.  That  such  liability  was  created  by  the 
said  State's  commission,  by  the  issue  and  sale  <  f  bonds, 
for  the  amount  of  which  the  citizens  remain  liable  to  tax- 
ation, and  the  defendants,  as  such  commission  and  of- 
ficers. b\  such  combination  and  conspiracy  with  others, 
and  by  fraud  and  a  breach  of  trust,  have  appropriated  to 
their  own  use  and  retain  in  their  own  hands  a  large 
amount  of  moneys  so  obtained,  which,  in  good  conscience 
and  equity,  should  be  recovered  by  action,  and  applied  to 
relieve  the  citizens  from  a  portion  of  their  said  liability. 

In  my  opinion,  it  is  not  only  the  duty  which  the  State 
owes  to  the  injured  citizens,  but  that  it  is  the  right,  and 
within  the  authority  of  the  people  to  exercise  the  right, 
and  by  their  constituted  attorney  to  bring  the  action  to 
recover  the  moneys  so  fraudulently  obtained  and  held; 
and  I  hold  that  this  duty,  coupled  with  the  right  and 
with  authority  to  sue,  is  such  an  intere;-t  in  the  action  as 
i>  acknowledged  by  the  law  of  the  land,  and  such  as 
relieves  it  from  all  objection  mi  this  ground,  if  such 
ground  could  be  urged,  and  I  think  it  cannot 

1  think  it  i<  not  necessary  in  such  a  case,  in  an  action 
tor  a  bi  each  of  trust,  to  show  that  the  State,  as  a  corpo- 
rate body,  has  the  title  to,  or  a  corporate,  or  even  a  pecu- 


165 


Diary  interest  in  the  moneys  sued  for,  to  entitle  it  to 
bring  the  action.  That  is  not  the  basis  of  its  riglit  or 
dutv  to  prosecute.  That  is  not  the  ground  upon  which 
the  State  assumes  to  stand.  The  right  to  bring  this 
action,  if  it  exists  at  all,  is  the  well-established  rule  of 
right  and  duty  by  the  common  law ;  the  duty  of  protect- 
ing public  interests  against  public  agents  invested  with 
trusts. 

This  liability  of  public  agents  may  arise  as  well  from 
acts  of  omission  as  of  commission. 

It  was  said  of  Lord  Ilardwicke.  in  The  Charitable 
Corporation  V8.  Sutton,  %  Atkyns.  405:  "If  some  are 
guilty  of  gross  non-attendance,  and  leave  the  manage- 
ment entirely  to  others,  they  may  be  guilty,  by  this  means, 
of  the  breaches  of  trust  that  are  committed  by  others.'' 
If,  then,  it  be  true,  that  the  responsible  ptrsonal  public 
duty  imposed  by  law  upon  this  Hoard  of  Auditors,  was 
intrusted  by  them  to  others  who  committed  the  alleged 
frauds  (as  is  manifest  from  their  resolution  of  5th  May, 
1870),  this  was  a  gross  breach  of  trust.  It  appears  by 
this  resolution,  that  they  not  only  did  riot  <ni</it  tin- 
accounts,  as  was  their  duty,  but  that  they  thereby  agreed 
they  would  not  audit  them.  That  is  the  law  required  of 
them,  the  personal  performance  of  a  duty;  they  refused 
to  perform  it.  Through  their  refusal  immense  frauds 
followed,  to  the  injury  of  the  public  interests. 

Lord  Ilardwicke,  in  the  same  case,  further  said.  "  I!v 
accepting  a  trust  of  this  sort,  a  person  is  obliged  to 
execute  it  with  fidelity  and  reasonable  diligence:  and,  it 
is  no  excuse  to  say  they  had  no  benefit  from  it.'"  So  he 
said,  "it  had  been  objected  that  the  Court  could  make  no 
decree  upon  several-  persons  that  would  be  just,  for  every 
man's  non-attendance  or  omission  of  hi*  duty  is  his  ""•/( 
default,  and  that  each  particular  person  must  bear  such 
proportion  as  is  suitable  to  the  loss  arising  from  hit  par- 
ticular neglect,  which  would  make  it  a  case  <  nit  of  the 
power  of  the  Court."  He  answers  this  objection  by  say- 
ing! If  upon  enquiry  it  appears  to  be  a  supine  negli- 
gence in  all  of  them,  by  winch  gross  complicated  l<»s 
happens.  I  will  never  determine  that  \\\v\  are  DOt  all 
guilty." 


A  trustee  may  be  guilty  of  a  breach  of  trust,  from  error 
or  ignorance  of  his  duty,  as  well  as  by  fraud  and  wilful 
omission.  Attorney-General  vs.  Poole  4-.  Mylne  & 
Craig,  28,  29. 

This  trust  was  a  personal  trust  to  the  individuals  to 
whom  it  was  confided.  It  was  their  duty  personally  to 
perform  it. 

It  was  a  violation  of  duty  to  delegate  it,  and  the  trus- 
tees became  responsible  for  the  abuse  of  their  delegated 
agents. 

I  do  not  propose  to  discuss  at  length  the  questions  of 
the  reciprocal  duties  and  obligations  that  exist  under  gov- 
ernment, between  the  government  and  the  citizen,  as  to 
the  right  of  support  from  the  one,  and  of  protection  from 
the  other.  I  shall  assume  that  among  the  duties  the  gov- 
ernment owes  to  the  citizen  is  that  of  furnishing  a  reme- 
dy, civil  as  well  as  criminal,  to  protect  him  from  wrongs 
inflicted  upon  him.  as  well  as  to  punish  the  wrong-doer. 
This  has  been  regarded  as  a  duty  by  every  civilized  gov- 
ernment. Puffendorf,  whose  authority  on  this  subject 
was  adopted  as  part  of  the  English  Common  Law,  says: 
"Since  the  subjects  are  obliged  to  the  bearing  of  taxes, 
and  the  like  burthens,  on  no  other  account  but  as  they 
are  necessary  to  defray  the  public  expenses,  &c,  it  is  the 
duty  of  sovereigns,  in  this  respect,  to  draw  no  further 
supplies  than  either  the  mere  necessity  or  the  signal 
benefit  and  interest  of  the  State  shall  require;  and  then 
they  ore  to  see  that  these  impositions  be  levied  according 
to  the  justest  proportion,  and  that  no  immunities  or  ex- 
emptions be  granted  to  certain  persons,  to  the  defrauding 
or  oppression  of  the  rest''  Book  7.  ch.  9,  §  10.  And  he 
holds  it  to  be  the  farther  duty  of  the  sovereign  to 
see  that  the  way  of  gathering  taxes  be  with  as  little 
charge  as  possible;  "and  that  much  do  not  stick  to  the 
collector's  P mgt  rs."  Id.  And  further,  "that  every  subject 
may  be  able  to  recover  his  right  by  as  short  and  cheap  a 
process  as  can  be  contrived,"  id,  £  5.  It  is  idle  to  talk 
about  governmental  protection  to  the  citizen,  if  the  earn- 
ings of  his  industry  be  appropriated,  and  his  property  be 
taken  by  the  action  of  government,  and  by  governmental 
agents  acting  under  the  sovereign  power,  enforcing  upon 


167 


flie  one  hand  the  <lutv  which  the  citizen  owes  to  his  <ro\- 
eminent  of  support,  without  the  exercise  of  the  corres- 
ponding duty,  and  enforcing  the  reciprocal  obligation 
by  the  government  on  the  other,  in  return — that  is  fur- 
nishing protection  and  a  remedy  to  redress  the  citizen's 
wrongs. 

Life,  liberty,  and  property,  are  reckoned  among  the 
most  valued  blessings  of  the  citizen.  lie  has  no  security 
or  protection  for  the  enjoyment  of  these  against  en- 
croachments made  by  the  cunning  of  the  strong,  and  the 
combinations  of  the  wicked,  but  in  the  laws  and  institu- 
tions of  government  wisely  administered  by  tribunals  of 
justice,  composed  of  men  above  fear,  and  beyond  re- 
proach. 

What  could  he  a  greater  inconvenience  to  the  due  ad- 
ministration of  justice,  or  of  reproach  to  a  government, 
than  the  failure  of  justice  from  the  acknowledged  want 
of  a  remedy  '{ 

There  must  of  necessity,  not  only  be  a  remedy  but  a 
jurisdiction  adeipiate  to  deal  with  such  cases.  It  is,  then, 
the  duty  of  government  to  furnish  the  remedy  for  such 
a  wrong,  and  the  duty  of  the  Courts  so  to  apply  it 
as  to  protect  the  weak  and  defenceless  against  the  Btrollg, 
and  to  punish  the  insolence  <>f  government  agents  who 
shall  be  found  guilty  of  such  shameless  encroachments 
and  wanton  injury  as  the  case  present-.  Without  this 
protection  to  the  citizen,  government  to  him  would  be 
but  a  mockery  and  a  shadow. 

Assuming,  then,  that  it  i&  the  duty  of  the  people  to  bring 
an  action,  and  that  they  have  sufficient  interest  to  sustain 
it,  it  remains  to  be  seen,  whether  they  have  the  right  to 
bring  this  action  in  their  name  by  their  Attorney  General  '. 
The  English  case  of  Attorney-General  against  Brown 
supra,  was,  in  its  features,  like  the  case  at  bar.  It 
was  an  information,  to  recover  money  in  the  hands 
of  commissioners  appointed  by  an  Act  of  Parlia- 
ment; which  money  was  the  produce  of  an  unauthor- 
ized assessment  made  upon  the  citizens  of  Brighton,  one 
of  the  English  town*,  for  the  purpose  of  being  applied 
to  prevent  encroachments  of  the  sea.  The  com 
missionen-    abused    the    trust     made    exorbitant  and 


168 


fraudulent  assessments — appropriated  the  funds  to 
their  personal  use,  and  when  sued,  demurred  to  the 
information.  That  ease,  like  the  case  before  us,  not 
only  charged  the  unduly  levying  of  taxes,  hut  also  the 
misapplication  of  the  funds  when  raised. 

The  defendants  in  that  case  claimed  that  the  Attor- 
ney-General was  limited,  to  brine  such  an  action  in  cases 
relating  only  to  charitable  uses,  such  as  are  specified  in 
the  Act  of  43,  Elizabeth,  and  that  this  was  merely  a 
trust  for  a  municipality,  and  did  not  come  within  that 
class  of  charitable  uses.  Lord  Chancellor  Eldon,  how- 
ever, on  a  deliberate  examination  of  the  case,  overruled 
the  demurrer  and  held  the  action  well  brought,  and,  as 
the  report  states,  that  it  was  a  charitable  use,  and  held 
the  defendants  liable     This  was  in  1818. 

Sir  John  Leach,  who  was,  in  that  case,  counsel  for  the 
defendants,  endeavored  to  show  that  because  the  fund 
was  raised  by  titration,  and  was  to  be  applied  to  the 
benefit  of  a  municipality,  it  could  not  he  a  charitable 
use  ;  and  that  it  did  not  come  within  the  statute  of  Eliza- 
beth ;  but  this  argument  was  overruled  bv  the  Lord 
Chancellor. 

Afterwards,  in  the  year  1824,  when  Sir  John  Leach 
had  become  Vice-Chancellor,  and  the  case  of  Attorney- 
General  vs.  Ileelis,  '2  Sim.  \:  Stu.,  77,  came  before  him 
as  Vice-Chancellor,  he  held,  in  direct  conflict  with  the 
opinion  of  the  Lord  Chancellor,  in  Attorney-General  vs. 
Brown,  (tiipra,  and  in  accordance  with  his  argument  in 
the  former  case  as  counsel,  viz  :  that  it  was  the  source 
from  whence  the  funds  are  derived,  and  not  the  purpose 
to  which  they  are  dedicated,  which  constituted  the  use 
charitable,  and  that  when  the  funds  were  derived  from 
rates  or  assessment:-  to  be  levied  upon  the  inhabitants  of 
a  town,  such  was  not  a  charitable  use,  though  he  admit- 
ted the  commissioners  appointed  by  an  Act  of  Parlia- 
ment in  such  a  case  were  trustees.  Sir  John  Leach 
though  ever  regarded  as  a  learned  and  able  equity 
Judge,  could  hardly  entitle  himself  to  the  character  of  a 
modest  one,  when,  in  his  opinion  as  Vice-Chancellor,  he 
attempted  to  overrnle  the  earlier  decision  of  the  Lord 
Chancellor,  in  the  case  of  Attorney-General  vs.  Brown ; 


and,  as  will  be  seen,  the  case  of  Attorney-General  as. 
Ileelis.  is  not  now  and  has  not  since  been,  regarded  as 
authority  in  England.  The  later  cast!  of  the  Attorney 
General  vs.  The  Corporation  of  Duhlin  was  first  de- 
cided in  Chancery,  according  to  and  upon  the  authority 
of  Attorney-General  vs.  ileelis.  The  case  was  appealed 
to  thellouseof  Lords,  where  it  and  the  case  of  Attorney- 
General  vs.  Ileelis  were  reviewed,  and  where  the  former 
was  reversed  and  the  latter  overruled.  Lord  Chancellor 
Kldon  and  Lord  Kede.-dale  delivered  the  opinions  in  the 
House  of  Lords.  1  Bligh.,  X.  S.,  312,  Lord  Eldon  saving, 
"  That  the  mode  in  which  tlie  rate  was  levied  was  not  to 
l>r  looked  at,  but  the  purpose  to  which  it  was  apjoHedf9  and 
Lord  Redesdale  concurring,  he  also  said.  *  When  the 
King  as par  ens  patriot,  may  institute  a  suit  hv  the  Attor- 
ney-General, it  is  not  essential  that  the  relators  should  join 
in  the  suit.*' 

In  a  still  later  case  of  Attorney-General  vs.  Eastlake,  1 1 
Hare,  205.  &c,  all  the  cases  on  this  point  were  reviewed 
by  Sir  William  Page  Wood,  and  the  case  of  Attorney-Gen- 
eral v  v.  Brown  ;  the  same  vs.  the  Corporation  of  Dublin, 
were  again  considered,  and  affirmed,  and  the  case  of  Attor- 
ney General  vs.  Ileelis  again  overruled.  The  ease  of  Attor- 
ney-General y*.  Eastlake  is  also  directly  in  point.  It  was 
a  case  of  Commisioners  appointed  by  an  Act  of  Parlia- 
ment;  the  moneys  were  obtained  b\  taxation  upon  the 
municipality  ;  the  object  for  which  the  money  wa>  to  he 
raised  and  to  which  it  was  to  he  applied,  was  directed  by 
statute;  and  the  hill  charged  the  misapplication  of  the 
funds.  The  Vice-Chancellor  began  his  opinion  h\  saying 
the  case  was  entirely  concluded  by  authority,  as  to  the 
right  of  the  Attorney  General  to  interpose,  and  de- 
cided that  the  doctrine  of  Sir  John  Leach,  and  the 
distinction  he  had  attempted  to  draw  between  gifts  and 
moneys  received  by  taxation,  did  not  exist,  in  deter- 
mining whether  there  was  a  charitable  u>e  in  that  case, 
he  concludes.  u  1  cannot  see  that  the  source  from  which 
these  moneys  are  here  derived,  vis :  from  taazzHon,  can 
make  any  difference  as  to  the  charitable  or  public  nature. 

which  would  be  attributable  to  the  fnjlds,  if  they 
proceeded  from  a  more  limited  sphere  of  boiUltj  ;  and 


170 


if  there  be  no  distinction  on  that  ground,  the  Attorney. 
General  is  the  person  to  represent  those  who  are  inter- 
ested in  that  general  and  public  or  charitable  use/' 

Confirmatory  to  this  view,  is  what  is  said  in  Attorney- 
General  >'.?.  Mayor  of  Liverpool.  1  Mylne  &  Craig.  201. 
w  hich  was  an  action  brought  against  a  municipal  cor- 
poration, in  which  the  question,  among  others,  was  raised 
whether  the  Attorney-General  could  bring  such  an  action, 
and  whether  the  Court  of  Chancery  had  jurisdiction  to 
interfere  with  municipal  corporations. 

The  Master  of  the  Rolls  held  the  affirmative  of  both 
propositions,  and  said.  "  But  though  a  body  having  a  cor- 
porate existence  is  capable  of  acquiring  and  possessing 
property,  and  therefore  also  of  disposing  of  it.  if  prop- 
erty is  held  by  a  corporation  as  trustee,  if  the  corpora- 
tion holds  it.  <:b>thed  with  pnhlic  duties,  the  Court  has 
always  asserted  its  right  to  interfere  :  and  he  cited  the 
case  of  Attorney-General  VS.  Dublin  a-  the  authority  for 
his  decision. 

In  the  case  of  the  Attorney-General  vs.  Aspinwall,  '2 
Mi  lne  &  Craig.  618,  the  Lord  (  haneellor  Cottenham  said  : 
"If  the  property  in  question  be  subject  to  any  trust,  and 
if  the  appropriation  complained  of  be  not  consistent  with 
such  trust,  but  applied  to  purposes  foreign  to  it,  and  if 
there  be  not  a  provision  in  the  Act  taking  from  the  Court 
of  Chancery  jurisdiction  in  such  cases,  then  it  will  follow 
that  the  Attorney-General  has  the  right  to  tile  the  informa- 
tion, and  to  pray  that  the  funds  may  be  recalled,  secured 
and  applied  for  the  public. or  in  other  words,  the  charitable 
purposes  to  which  it  is  devoted."  Nor  is  it  an  objection,  in 
the  English  Court  of  Chancery,  that  other  parties  are  also 
interested,  and  may  also  bring  an  action  for  the  injury, 
that  the  Attorney-General  brings  an  action,  nor  that  he 
joins  with  him  such  other  interested  parties.  So  held  in 
the  case  of  the  Attorney-Genera],  on  the  relation  of  the 
Mayor  <>f  Leeds  vs  the  Mayor.  Aldermen.  Arc.  of  Leeds 
1  Craig  &  Phillip>.  1. 

Xor  by  the  recent  cases  is  it  necessary,  in  order  to  con- 
fer jurisdiction  upon  a  Court  of  Equity,  that  the  trust 
should  be  what  is  technically  called  a  charitable  use;  it 
is  sufficient  if  there  be  a  special  or  public  trust,  for  pub- 


171 


lie  purposes,  and  a  breach.  It  did  not.  in  England,  88 
was  argued,  depend  upon  the  Statute  of  William  IV., 
•  ailed  the  "Municipal  Reform  Act,"  passed  in  1835.  It 
existed,  and  was  bo  declared,  long  before  that.  Attorney- 
General  w.  City  of  Dublin  ;  Same  r*.  Brown,  .supra.  Nor 
does  it  affect  the  right  of  the  Attorney-General  to  bring 
the  action  in  such  case  that  a  corporation  or  a  private  in- 
dividual may  also  bring  an  action.  Attorney-General 
vs.  Wilson,  1  Craig  &  Philips,  supra.  The  question  a> 
to  the  right  of  the  Attorney-General  to  bring  the  action 
in  this  class  of  cases  has  ceased  to  be  discussed  in  Eng- 
land. 

But  one  case  is  found  in  this  State,  which  is  cited 
against  this  array  of  authority  to  show  the  converse  of 
the  rule — of  the  right  and  duty  of  the  Attorney-General 
to  bring  the  action  before  us. 

It  is  a  recent  decision  of  a  co-ordinate  branch  of  this 
Court.  The  People  l**.  Miiier.  reported  in  -J.  Lansings 
Sup.  Court  Reports,  ."{!•<!. 

This  case  stands  alone  and  in  conflict  with  the  English 
and  American  authorities  1  have  cited  above.  This  case, 
it  is  urged  by  the  counsel  for  the  defendants.  i>  conclu- 
sive upon  this  Court,  upon  the  doctrine  of  Start  decudn. 

I  am  not  wanting  in  respect  for  this  doctrine ;  never, 
when  it  comes  from  a  Superior  Court ;  less  so,  only  hi 
degree,  when  it  proceeds  from  a  Court  of  co-ordinate  au- 
thority ;  especially  one  for  whose  learning  and  ability 
I  entertain  the  most  profound  respect.  But  I  can  only 
decide  this  case  upon  the  honest  exercise  ol  my  best  and 
deliberate  judgment,  and  upon  my  own  clear  convictions 
of  well  settled  law. 

The  authorities  which  led  that  able  Court  to  the  result 
as  repoited  here,  upon  a  most  thorough  examination, 
clearly  established  in  my  mind  a  contrary  conclusion. 
That  opinion  lays  down  as  the  basis  of  the  decision  the 
following  proposition  :  "  But  it  >eems  to  be  considered  in 
the  English  Chancery  that  no  property  of  a  corporation  is 
considered  charitable  unless  it  has  been  given  to  the  cor- 
poration by  the  Government,  or  individuals,  to  l>e  de- 
voted to  the  use  of  the  public." 


172 


"  Hence"  (says  the  opinion)  "  moneys  raised  by  taxation 
is  not  within  the  control  of  the  Court"  (p.  4r08). 

The  learned  Judge  then  proceeds  to  cite  the  case  of 
the  Attorney-General  vs.  Ileelis,  as  authority  for  the  rule 
laid  down  in  that  case,  and  says  "  it  proceeds  upon  the 
distinction  suggested  and  is  directly  in  point,  and 
against  the  power  of  the  Court  to  intervene,  in  cases  of 
trusts  not  charitable?  We  have  previously  shown  that 
the  case  of  Attorney-General  vs.  Heelis  was  not  law  when 
it  was  pronounced  by  Sir  John  Leach  ;  that  it  was  ex- 
pressly reviewed  and  overruled  by  the  cases  of  the  Attor- 
ney-General vs.  Mayor  of  Dublin,  in  the  House  of  Lords, 
and  by  the  Attorney-General  vs.  Eastlake,  by  the  Lord 
Chancellor,  and  is  found  in  conflict  with  nearly  every 
other  English  and  American  decision. 

In  an  examination  of  the  same  English  cases  by  the 
late  Judge  Dner,  he  said  "that  the  examination  he  had 
given  to  those1'  (English)  *'  cases  justified  him  in  saying 
that  the  general  rule  to  be  extracted  from  them  was  this: 
that  when  the  act  of  a  municipal  corporation  *  * 
affects  injuriously  the  public  at  large — that  is, 
the  entire  community  over  which  the  corpor- 
ate jurisdiction  extends — the  Attorney-General  is 
a  necessary  party  to  the  prosecution  of  the 
suit,"  and  that  it  is  only  where  the  act  which,  in  this 
sense,  is  a  public  injury  to  particular  individuals,  that 
the  action  can  be  maintained  in  their  names  ;  "  and  he 
added  that  this  rule  "  had  a  solid  foundation  of  princi- 
ple, and  was  sustained  by  very  sound  reasons  of  public 
policy."  It  appears  to  me  that  the  case  in  2  Duer,  supra, 
is  supportad  by  the  following  cases  in  this  State  :  Doolit- 
tle  vs.  Supervisors  of  Broome,  18  N.  Y.,  162;  Roseveit 
vs.  Draper,  23  N,  Y.,  137;  16  How.  Pr.  R.,  318;  7 
Abbott's  Pr.  P.,  158  ;  10  id.,  114 ;  32  Barb.,  102  ;  and 
50  Penn  St.  P.,  100. 

If  the  views  of  the  law  I  have  expressed  are  sound, 
then  it  may  be  laid  down  as  a  general  proposition,  that  in 
a  Court  of  Equity,  if  the  case  is  one  of  public  trust  crea 
ted  by  statute,  and  if  there  has  been  an  abuse  or  breach 
of  the  trust  by  a  public  officer,  whether  appointed  by 
statute  or  otherwise,  unless  the  statute  has  empowered 


173 


some  one  eJse  to  sue,  or  has  declared  or  created  a  title  to 
the  moneys  or  property  taken  away  ur  misappropriated, 
to  he  in  some  other  person  or  body,  the  remedy  hy  suit  is 
in  the  people  hy  their  Attorney-General.  And  various 
cases  are  found  in  the  English  authorities  in  cases  of 
breach  of  trust,  where,  though  ail  individual  may  sue  for 
a  private  wrong  or  injury  done  to  his  interests,  the  State 
has  a  concurrent  right  to  prosecute,  and  this  right  is  not 
affected  hy  the  private  action. 

1  have  had  put  into  my  hands  a  newspaper  report  of  ;t 
case  upon  this  same  point, decided  in  the  State  of  Missouri. 
It  appears  in  the  Si.  Louis  Republican  of  the  dale  of  13th 
.July,  1*7^.  In  that  case  the  right  of  the  Attorney-Gen- 
eral'to  bring  an  action  in  the  name  of  the  people  was 
fully  discussed.  The  English  and  New  York  authorities 
were  all  reviewed.  The  conclusion  arrived  at  was  the 
same  as  is  given  in  this  opinion,  and  the  case  of  the  Peo- 
ple '•.  Miner,  in  2  Lansing,  was  entirely  disapproved  a- 
authority. 

It  is  urged  upon  the  argument,  by  the  defendant's 
counsel,  that  if  relief  can  he  had  against  the  defendants 
in  the  name  of  the  Attorney-General,  the  remedy  is  only 
in  the  Court  of  Chancery ;  that  this  action  is  an  action 
of  law  ;  that  the  complaint  is.  in  form,  Strictly,  and  only, 
one  in  an  action  at  law. 

It  is  true,  the  demand  at  the  close  of  the  complaint  i> 
for  a  judgment  for  money  only  ;  and  it  is  equally  true, 
that  the  complaint  is  an  anomaly  in  th*j  system  of  plead- 
ing, and.  it  may  be  said,  is  not  according  to  any  pre- 
scribed form  of  past  or  present  practice  ;  and.  I  think,  it 
is  also  true,  that  it  is  the  Court  of  K<j>iit;/  that  has  juris- 
diction of  this  class  of  actions.  I  am  disposed  to  hold, 
that  upon  the  great  principles  of  natural  equity  such  an 
action  can  he  sustained,  even  in  the  absence  of  precedent 
or  authority.     It  was  held  in  the  case  of  the  People  Rff. 

Aspinall.  *'//>/ w.  "that  nothing  is  required  to  bring  a  case  i 

within  the  jurisdiction  of  ( chancery,  hut  that  monev>  art' 

held  for  a  public  trust  and  a  breach  of  that  trust.  And 
see,  also,  Attorney-General  Poole,  t>  Clark  A:  Finnelly, 
4<»1».  If  we  are  right  in  the  views  of  the  law  of  Kquity 
which  we  have  discussed,  it  is  still  seen  that  facte  are  ael 


174 


forth  in  the  body  <>f  this  complaint  sufficient  t<>  show  an 
equitable  cause  of  action,  though  the  demand  of  a  relief 
has  the  characteristic  of  an  action  at  law. 

But  we  are  taught  by  the  more  liberal  system  of  plead- 
ing how  in  force,  adopted  by  the  Code,  that  it  was  expe- 
dient that  the  former  system  of  pleading,  as  in  cases  at 
common  law,  should  be  abolished,  and  the  distinction 
between  legal  and  equitable  remedies  should  no  longer 
continue,  and  that  a  uniform  course  of  proceeding  be 
established.  The  kind  of  action  or  proceeding,  however, 
still  depends  on  the  nature  of  the  right  to  be  enforced, 
or  wrong  to  be  remedied.  This  must  be  shown  by  the 
facts  which  constitute  the  cause  of  action.  If  these  are 
sufficient,  the  form  of  the  demand  of  relief  does  not 
destroy  their  force,  or  change  the  character  of  the  action. 
The  complaint  certainly  is  inartistic,  for  an  equity 
action,  and  perhaps,  for  any  other,  but  an  error  in  the 
demand  of  relief  neither  chancres  the  character  of  the 
action.  n<»r  affords  ground  for  demurrer.  Whatever  im- 
perfections may  be  found  to  exist  in  the  form  of  the 
pleading,  or  as  to  want  of  certainty  in  its  statement,  or 
for  surplusage  in  statement,  might  be  the  subject  of  a 
special  motion,  but  these  objections  are  not  available 
before  us. 

There  are  several  other  objections  raised  which  are 
merely  technical,  as  to  the  form  of  action  and  to  the 
form  of  the  pleading,  but  they  are  not  so  material  as  to 
require  discussion,  or  to  make  them  a  ground  for  sustain- 
ing the  demurrers. 

From  a  renew  of  all  the  cases  in  England  and  in  this 
State  to  which  1  have  had  access.  1  have  come  to  the  cor, 
elusion,  and  hold,  that  the  Attorney-General  is  authorized 
to  bring  actions  in  the  name  of  the  people  of  this  State 
for  breaches  of  trust  against  all  classes  of  public  officers, 
and  in  cases  of  trust  for  public  purposes.  That  in  the 
exercise  of  this  right,  he  is  not  limited  to  actions  against 
municipal  officers,  but  it  extends  especially  to  special 
boards  or  commissions  appointed  by  the  Legislature  to 
exercise  a  public  trust:  that  the  right  to  prosecute  does 
not  depend  upon  the  source  from  which  the  moneys  used 
have  been  derived,  whether  from  taxation  from  creating 


175 


liabilities  to  taxation,  or  from  mure  limited  source?,  as 
from  gifts,  bequests  or  donations;  but  that  it  depends 
upon  the  purpose  or  object  to  which  the  fund  is  to  be 
applied,  and  that  the  case  at  bar,  being  a  public  pur- 
pose, it  comes  within  this  rule. 

I  hold,  therefore,  that  upon  the  statement  of  facts 
set  forth  in  the  complaint,  the  defendants  l'wced 
and  Connolly,  together  with  A.  <  >.  Hall,  wore,  \iy 
the  Legislature,  constituted  a  special  public  com. mission 
as  a  Board  of  Auditors,  and  were  clothed,  as  such  Board, 
with  a  public  trust  That  the  moneys  in  question  having 
been  raised  by  them  in  the  exercise  of  such  public  trust, 
it  became  their  duty  to  apply  them  to  the  designated 
public  use;  that  they  were  guilty  of  a  breach  of  that 
duty,  and.a  breach  of  said  trust  in  the  entire  omission,  as 
such  Board,  to  audit  the  a  ccounts  in  question,  and  in  the 
illegal  delegation  of  this  duty  to  irresponsible  agents; 
that  they  were  guilty  of  a  breach  of  duty  in  raising  an 
amount  of  money  greatly  in  excess  of  the  public  tiecessi- 
ties,  and  corruptly  and  fraudulently  colluding  and  con- 
spiring with  others  in  the  appropriating  of  and  in  using 
the  said  moneys  upon  false  and  fictitious  claims,  aim  in 
allowing  large  amounts  thereof,  through  such  instrumen- 
talities, to  be  taken,  used  and  appropriated  to  the  individ- 
ual use  of  the  defendant  Tweed.  That  it  is  the  duty  of 
the  people  of  the  State  to  prosecute  for  this  breach  of  trust, 
by  their  duly  constituted  officer,  the  Attorney-General ; 
that  this  action  i>  lawfully  prosecuted;  that  this  ('Mint 
has  jurisdiction  of  the  said  action,  and  that  the  com- 
plaint contains  tacts  sufficient  to  constitute  a  cause  of  ac- 
tion. 

The  result  is,  in  my  opinion,  that  the  order  of  Special 
Term  overruling  the  demurrers  in  both  cases,  should 
be  affirmed,  with  costs. 


176 


Parker,  (dissenting) :  This  action  is  brought  by 
the  People  of  the  State  of  New  York,  as  plaintiffs,  to  re- 
cover of  the  defendants  the  sum  of  .-ix  million  three 
hundred  and  twelve  thousand  dollars,  which  it  is  alleged 
the  defendants  wrongfully  obtained  from  the  County 
Treasurer  of  the  county  of  New  York,  and  appropriated 
to  their  own  use. 

The  complaint  sets  forth,  in  the  first  place,  the  fact 
that,  by  au  Act  of  the  Legislature  of  the  State  of  New 
York,  passed  April  20.  1S7<>.  entitled  "  An  Act  to  make 
further  provision  for  the  government  of  the  county  of 
New  York,"  it  was  enacted,  that  all  liabilities  against  the 
said  county  previous  to  the  passage  of  that  Act  should  be 
audited  by  the  Mayor  of  the  city  of  New  York,  the  Comp- 
troller of  said  city,  and  the  fhen  President  of  the  Board 
of  Supervisors  of  the  said  county;  and  that  the  amounts 
which  should  be  found  due  should  be  provided  for  by 
the  issue  of  revenue  bonds  of  the  said  county,  payable 
during  the  year  1871  ;  that  the  said  Board  of  Supervisors 
should  include  in  the  ordinance  levying  the  tax  for  the 
year  1871,  an  amount  sufficient  t<>  pay  said  bonds,  and 
the  interest  thereon,  and  that  the  claims  on  such  liabili- 
ties should  be  paid  by  the  said  Comptroller  to  the  parl- 
or parties  entitled  to  receive  the  same,  upon  the  certifi- 
cate of  the  three  officers  so  required  to  audit  in  that  be- 
half, by  the  said  Act." 

It  then  alleges  that  at  the  passage  of  the  Act,  and  at 
all  times  since,  Abraham  Oakey  Hall  was  Mayor,  and 
Richard  1>.  Connolly  Comptroller,  and  that  defendant 
William  M.  Tweed  was.  and  continued  to  be,  up  to  and 
including  .Inly  4.  1S7",  President  of  the  Board  of  Su- 
pervisors. 

That  after  the  passage  of  the  Act,  and  before  the  '2d 
day  of  September.  187*',  claims  purporting  to  be  of  the 
character  aforesaid,  were  certified  by  the  said  three 
officers,  amounting  in  the  aggregate  to  80.312.541.37.  a 
list  of  which  is  appended  in  a  schedule  made  a  part  of 
the  complaint. 

That  from  time  to  time,  as  such  certifications  were  re- 
spectively made  known  to  him  or  his  subordinates,  the 
said  Comptroller  caused  to  be  issued  bonds,  as  prescribed 


177 


by  said  Act.  in  order  to  provide  funds  to  pay  the 
amounts  so  certified,  and  obtained  from  bona  fide  pur- 
chasers thereof,  prior  to  the  5th  day  of  August,  ls7". 
(6,313,000,  which  sum  was.  iii  formal  compliance  with 
the  statutes  and  usual  modes  of  official  proceeding  in 
said  city,  deposited  in  the  National  Broadway  Hank  of 
the  city  of  New  York  to  the  credit  of  an  account  therein, 
kept  by  the  Chamberlain  of  the  city,  as  ('mint;/  Treas- 
urer of  the  county,  by  virtue  of  his  official  character  as 
such  Chamberlain ;  and  then  is  set  forth  a  blank  form 
exhibiting  the  tenor  of  all  such  bonds,  the  respective 
payees,  amounts,  dates,  and  signatures  being  in  blank, 
and  an  allegation  is  made  that  none  of  the  bonds  so 
issued  have  as  yet  become  due.  The  blank  form  is  of  a 
bond  of  the  county  of  New  York,  payable  at  the  office  of 
the  Comptroller  of  the  city  of  New  York  on  the  1st  day 
of  December,  1871,  with  interest  at  the  rate  of  seven  per 
cent,  per  annum,  payable  semi-annually  on  the  first  day 
of.Iuneand  December.  The  attestation  clause  is  as  fol- 
lows :  "  In  witness  whereof,  the  Board  of  Supervisors  of 
said  county  have  caused  this  bond  to  be  signed  by  the 
Comptroller,  countersigned  by  the  Mayor,  and  sealed 
with  the  common  seal  of  said  Hoard,  attested  by  their 

Clerk,  at  New  York,  this  day  of  .  A.  D.  15— 

It  is  further  alleged  that  none  of  the  claims  so  certi- 
fied by  said  three  officers  were  ever  examined  or  audired 
by  them,  and  that  they  passed  a  formal  resolution  in 
effect  to  dispense  with  such  examination.  That  from 
time  to  time  thereafter,  accounts,  purporting  to  be  lia- 
bilities of  the  county  incurred  prior  to  April  2»5,  157*1, 
but  which  were  fictitious  and  fraudulent,  were  presented 
to  the  said  members  of  said  Hoard  of  Audit,  separately, 
whereupon  they  each,  separately,  without  any  investiga- 
tion <»r  any  conference  with  each  other  in  regard  thereto, 
certified  each  of  said  accounts  so  presented  by  severally 
signing  a  certificate  in  the  form  following:  •'The  under- 
signed, in  pursuance  of  Sec.  4.  chap.  882,  Law-  of  L870, 

certify  that  they  have  audited  the  annexed  bill  of  , 

and  have  allowed  the  same  at  the  sum  of   dollars. 

Dated  New  York,  — ,  1H7<>.''  That  upon  such  certifi- 
cates, by  direction  of  the  Comptroller,  warrants  wen- 


178 


issued,  signed  by  the  Comptroller  and  countersigned  by 
the  Mayor,  <>n  which  the  co-defendants  of  defendant 
Tw  eed  obtained  from  the  County  Treasurer  the  money 
to  the  amount  aforesaid,  which  money  was,  pursuant  to  a 
corrupt  agreement  between  defendant  Tweed  and  his  co- 
defendants,  divided  between  themselves  and  others  an 
known. 

The  complaint  proceeds  to  aver  that  no  provision  was 
made  by  the  New  York  Board  of  Apportionment,  in 
fixing  the  amount  to  be  raised  in  the  year  1871  for  the 
payment  of  the  said  bonds  ;  and  such  Board,  in  fixing 
such  amount,  have  proceeded  to  the  extent  of  their 
authority;  that  the  Board  of  Supervisors  have  raised  by 
tax  all  the  moneys  which  they  can  lawfully  raise,  during 
said  vear,  and  none  of  it  can  lie  applied  to  the  payment 
of  said  bonds,  and  that  there  is  no  fund  existing,  or  capa- 
ble of  being  raised  or  levied  by  taxation,  or  otherwise, 
which  can  be  legally,  or  in  fact,  applied  to  the  payment 
of  the  bonds  or  any  part  thereof,  unless  it  be  the  moneys 
so  paid  by  said  bank,  and  sought  to  be  recovered  by  this 
action;  and  that  there  is  no  property,  nor  any  person, 
natural  or  artificial,  bound  by  law  or  contract  for  the 
payment  <>f  the  bonds,  or  any  part  thereof,  unless  it  he  the 
wrong  doers  in  the  complaint  mentioned,  save  and  except 
only  the  People  of  the  State  of  New  York,  in  their 
capacity  as  a  body  politic ;  and  that  the  people  of  this 
State  are.  through  such  means  as  their  State  government 
in  its  w  isdom  may  employ,  bound,  by  reason  of  the  pledge 
of  their  public  faith  implied  in  the  Act  first  above  men- 
tioned, to  provide  for  and  pay  the  said  bonds. 

The  complaint  further  avers,  that  after  it  became  pub- 
licly known,  and  known  to  defendant  Tweed,  and  to  A. 
O.  Hall,  and  the  Corporation  Counsel,  that  the  Attorney- 
General  w  as  about  to  commence  suits  against  these  de- 
fendants, and  others  implicated  in  the  said  corrupt  and 
fraudulent  proceedings,  the  said  Hall,  as  such  Mayor 
and  as  President  of  the  Board  of  Supervisors  of  the 
county,  wrongfully  and  unjustly,  with  purpose  and  intent 
to  defeat  any  suits,  actions  or  proceedings  which  might 
be  instituted  in  behalf  of  the  people,  and  thereby  to 
enable  the  said  defendant  Tweed,  and  his  confederates, 


1?.' 


to  evade  and  escape  from  the  pursuit  of  justice,  did,  in 
collusion  with  said  Tweed,  and  w  ithout  the  consent  or 
knowledge  of  the  Attorney-Genera),  direct  the  said  ( loun- 
sel  for  the  Corporation  f<>  commence  six  actions  in  the 
First  Department  of  the  Supreme  Court,  by  the  service 
of  a  summons  in  each,  as  follows  :  three  actions  in  the 
name  of  the  Major,  &©.,  of  the  city  of  New  York,  as 
plaintiff;  one  of  them  against  Win.  M.  Tweed,  as  sole 
defendant;  one  against  Richard  B.  Connolly,  as  sole  de- 
fendant, and  one  against  Abraham  Oakev  Hall,  as  sole 
defendant  therein;  and  also,  three  actions  in  the  name  of 
the  Supervisors  of  the  County  of  New  York,  as  plaintiffs  ; 
one  against  said  Tweed  ;  one  against  said  Connolly,  and 
one  against  said  Hall,  as  sole  defendants  respectively  ; 
which  actions  are  still  depending  without  any  step  having 
been  taken,  or  in  good  faith  intended  to  betaken  therein, 
beyond  the  service  of  the  summons.    Tnat  said  actions 
were  intended  to  cover  and  embrace,  in  point  of  form, 
and  apparently  in  substance,  claims  for  satisfaction  in  re- 
spect to  all  frauds  of  the  said  Tweed,  official  or  other, 
wise,  in  this  complaint  mentioned  or  referred  to,  and  all 
other  liabilities  of  said  Tweed,  Connolly,  and  Hall,  for 
which  any  action  could  be  brought  against  them.  But 
said  six  actions  will  not  and  cannot  be  fairly,  beneficially, 
or  usefully  prosecuted,  inasmuch  as  they  are  controlled 
by  said  Hall,  who  is  in  complicity  with  said  Tweed  and 
Connolly,  and  has  complete  control  over  the  Counsel  of 
the  Corporation.    Xor  can  or  will  any  other  action  or 
proceeding  be  had  or  taken  l>y  said  Mayor  or  uny  other 
offi,  er  f  t  t/ir  city  or  county,  for  the  purpose  of  redress- 
ing the  said  frauds  and  wrongs  against  the  people  of  the 
State  of  New  York,  or  of  recovering  the  public  moneys 
so  as  aforesaid  fraudulently  appropriated  by  said  defend- 
ants, or  any  of  them.     But,  on  the  contrary,  the  said 
Mayor,  and  all  other  officers  of  said  city  and  county,  hav  - 
ing power  or  authority  in  the  premises,  intend  ami  design 
to  prevent  any  such  action.  >uit,  or  proceeding.  red  res.*  or 
recovery.    The  complaint  demands  judgment  against  the 
defendants  for  the  sum  of  b«  million  three  hundred  and 

twelve  thousand  dollars,  with  interest  from  the  first  day 
uf  September,  187<>,  and  costs. 


180 


To  this  complaint  the  defendant  Tweed  demurred, 
upon  the  grounds : 

1.  That  it  appears  upon  the  face  of  the  complaint  that 
the  plaintiffs  have  not  legal  capacity  to  sue  in  this 
action. 

2.  That  the  complaint  does  not  state  facts  sufficient  to 
constitute  a  cause  of  action. 

3.  That  it  appears  upon  the  face  of  the  complaint  that 
there  is  a  defect  of  parties  defendant,  in  the  omission  of 
the  Mayor,  Aldermen,  and  Commonalty  of  the  city  of 
New  York. 

4.  That  it  appears  upon  the  face  of  the  complaint  that 
there  is  a  defect  of  parties  defendant,  in  the  omission  of 
the  Board  of  Supervisors  of  the  county  of  New  York. 

At  Special  Term  the  demurrer  was  overruled,  and 
judgment  ordered  for  the  plaintiff.  From  the  order  of 
Special  Term  the  defendant  Tweed  appeals  to  the  Gen- 
eral Term. 

The  atrocity  of  the  acts  charged  upon  the  defendants, 
by  means  of  which  they  corruptly  and  wrongfully  ob- 
tained the  enormous  amount  of  money  claimed  in 
this  action,  very  naturally  arouses  a  feeling  of  indig- 
nation against  them,  and  the  desire  to  sustain,  if  possible, 
any  proceeding  against  them  for  the  recovery  of  the 
money  so  taken  by  them  from  the  county  treasury,  and 
yet  it  is  the  plain  duty  of  the  Court  to  overcome  such 
feeling  and  enter  upon  the  examination  of  the  legal  ques- 
tions arising  upon  this  demurrer,  with  the  same  degree  of 
calm  investigation  and  reflection  as  would  he  applied  to 
an  ordinary  case.  The  circumstances  attending  this 
case,  except  so  far  as  they  legitimately  control  the  appli- 
cation of  rules  of  law  to  it,  should  not,  and  I  trust  will 
not,  in  any  degree  influence  its  decision. 

Three  legal  questions  are  raised  by  the  demurrer, 
which  may  be  stated  as  follows  : 

1.  Does  the  complaint  set  forth  a  cause  of  action 
against  the  defendant  Tweed,  in  favor  of  any  party  ? 

2.  If  a  cause  of  action  is  set  forth,  is  it  one  in  favor  of 
the  people  of  the  State  of  New  York,  and  can  the  people, 
as  plaintiff,  maintain  the  action  ? 

3.  If  the  action  is  properly  brought  by  the  people  as 


L81 

plaintiff)  is  not  the  Board  of  Supervisor.-  of  the  county  of 
New  York,  or,  it  Dot  such  Hoard,  the  Major,  Aldermen 
and  Commonalty  of  the  citv  of  New  York,  a  necessary 
party  defendant,  w  ithout  whose  presence  in  Court  the 
action  cannot  proceed  ? 

In  regard  to  the  first  of  these  questions,  it  is  said  by 
the  counsel  for  the  defendant  Tweed,  that  no  cause  of 
action  is  shown  to  exist  against  him,  because  it  is  not 
alleged  that  he  drew  the  money  f roin  the  county  treasury, 
but  only  received  a  part  <>f  what  his  co-defendants  drew, 
upon  a  division  of  it  with  them.  and.  so  far  as  appears, 
without  notice  that  the  claims  were  fictitious  or  exces- 
sive, or  that  the  money  was  not  rightly  drawn  from  the 
treasury  by  his  co-defendants. 

To  this,  it  is  a  sufficient  answer  to  say,  that  it  is  al- 
leged that  the  payments  made  to  his  co-defendants  upon 
the  accounts  falsely  and  fraudulently  made  up  by  them, 
were  divided  between  defendant  Tweed  and  his  co- 
defendants  pursuant  to  a  corrupt,  fraudulent  and  unlaw- 
ful combination  and  conspiracy  between  them,  that  they 
should  be  so  divided.  Notice  to  him,  therefore,  that  the 
money  was  fraudulently  obtained  from  the  treasury,  is 
not  necessary  to  be  averred  or  shown,  to  entitle  the 
owner  of  the  money  to  reclaim  it  of  him,  receiving  it  as 
he  did,  under  a  corrupt  agreement  from  his  co-defend- 
ants who  thus  fraudulently  obtained  it.  lie  is  not  a  lnmu 
fide  holder  of  the  money  for  value,  as  sufficiently  appears, 
and  hence  has  no  claim  to  it.  as  against  the  true  owner. 

Whether  he  is  liable  in  a  civil  suit  for  the  mal-admin- 
istration  of  his  office,  or  for  inal-conduct  therein,  it  is  not 
now  necessary  to  inquire.  The  ground  of  liability  above 
stated,  is  upon  the  demurrer,  a  sufficient  answer  to  the 
question  first  above  mentioned. 

The  next  inquiry  is,  does  the  complaint  Bet  forth  a 
cause  of  action  against  this  defendant  in  favor  of  the 
People  of  the  State  I 

It  is  insisted  on  the  part  of  defendant  that  if  any  cause 
of  action  exists  upon  the  facts  of  the  complaint,  it  is  in 
favor  of  the  county  of  New  York,  and  not  of  the  People 
of  the  State. 

The  action  is  what  is  known  as  a  common  law  action 


182 


for  the  simple  recovery  of  the  money,  and  no  equitable 
relief  is  demanded. 

Whether  the  county  of  New  York  can  maintain  an  ae 
tion  for  the  recovery  of  this  money,  depends  upon  two 
questions  :  First,  did  the  money  taken   belong  to  the 
county  \  and.  Second,  lias  the  county  capacity  to  sue  \ 

The  money  in  question  was  raised  upon  the  bonds  of 
the  county,  to  pay  debts  of  the  county,  pursuant  to  a 
statute  of  the  State,  to  meet  which  bonds,  the  Act  under 
which  they  were  issued,  required  the  Supervisors  of  the 
county  to  include  in  the  ordinance  levying  the  tax  for 
1871,  an  amount  sufficient  to  pay  the  same  with  interest; 
and  when  this  money  had  been  so  raised  upon  the  county 
bonds,  it  was  paid  into  the  hands  of  the  County  Treas- 
urer, from  whom  it  was  obtained  by  the  co-defendants  of 
defendant  Tweed,  and  distributed. 

Attention,  however,  is  called  to  the  fact  that  bonds 
were  issued  to  an  excessive  amount;  and  as  to  such  ex- 
cess it  is  insisted  the  money  was  in  fact  obtained  for  the 
use  of  the  conspirators  ;  that  such  money  was  not  author- 
ized to  be  raised  at  all  ;  that  it  was  not  raised  for  the  use 
of  the  county,  nor  to  be  paid  into  the  county  treasury,  or 
to  be  applied  to  county  purposes,  nor  was  any  authority 
given  so  to  raise  or  apply  it ;  and  this  was  done,  it  is 
said,  "  by  a  special  commission  appointed,  organized  and 
directed  by  the  State,  through  its  own  supreme  Legisla- 
ture," and  hence,  it  is  argued,  the  State,  as  principal,  has 
a  right  of  action  against  these,  its  agents,  for  the  fraudu- 
lent over-issue  of  bonds,  and  for  the  money  obtained 
upon  their  sale. 

This  Board  of  Audit,  although  designated  by  the  Act, 
was,  in  no  sense,  the  agent  of  the  State,  as  their  princi- 
pal, and  the  law  of  principal  and  agent  has  no  applica- 
tion between  them  and  the  State.  They  were  not  acting 
for  the  State,  but  for  the  county.  There  is  no  dispute 
that  the  county  owed  debts  which  ought  to  be  paid,  and 
for  the  payment  of  which*  legislation  was  necessary.  In 
contemplation  of  law,  the  provision,  for  their  payment,  in 
the  "  Act  to  make  further  provision  for  the  government 
of  the  county  of  New  York,"  was  beneficial  to  the  county, 
and  presumptively  made,  if  not  upon  its  application,  at 


183 


least  with  its  concurrence  and  consent;  and  if  the  law 
of  principal  and  agent  applies,  these  auditors  were  the 
agents  of  the  county,  and  their  liability  for  the  over  issue 
is  to  the  county,  whose  credit  they  thus  ahused,  rather 
than  to  the  State.  (See  Dailey  vs.  the  Mayor,  <(•'-..  3  Hill, 
531,  543.) 

That  the  persons  charged  with  the  duties  imposed  by 
the  provision  in  question,  were  not  county  officers,  does 
not  in  the  least  affect  the  influence  of  their  acts  upon 
the  county.  They  were  appointed  by  the  Legislature  to 
act  in  the  business  of  the  county,  and  for  the  county 
—  and  they  were  j>ro  hoc  vice,  county  officers,  substituted 
for  the  officers  of  the  county  upon  whom  the  duties  with 
which  they  were  charged  are  ordinarily  imposed,  to  wit. 
the  Supervisors.  That  they  had  power  to  pledge  the 
credit  of  the  county  in  the  raising  of  the  money  to  pay 
its  debts,  and  to  pay  the  debts  with  the  money  so  raised, 
is  not  questioned.  The  fact  that  they  exceeded,  in  their 
issue  of  bonds,  the  actual  amount  of  the  indebtedness  of 
the  county,  does  not  invalidate  the  bonds  so  issued  in 
excess,  in  the  hands  of  the  bona  jide  purchasers  who  ad- 
vanced the  money.  The  officers  who  issued  the  bonds, 
were,  in  issuing  all  which  were  issued,  acting,  so  far  as 
third  persons  could  see,  within  the  scope  of  the  powers 
conferred  upon  them,  and  the  principle  applies,  I  think 
that  in  reference  to  such  acts,  the  party  for  whom  they 
were  thus  ostensibly  acting,  to  wit,  the  county  of  New 
York,  is  holden. 

Now  if  the  county  is  holden  uponthe  bonds — and  that 
it  is  so  holden  is  not  denied — it  seems  to  follow,  in- 
evitably, that  the  money  paid  for  them  by  the  bona  ji<l< 
purchasers,  is  the  money  of  the  county.  I  cannot  con- 
ceive how  this  can  be  seriously  questioned. 

If  the  county  is  not  holden.  it  seems  equally  clear  that 
the  money  belongs  to  the  purchasers.  In  either  case  the 
State  has  no  interest  in  it. 

But  assuming  the  bonds  to  be  valid  in  the  hands  of 
bona  fide  holders,  as  the  complaint  seems  to  assume  them 
to  be,  and  as  the  plaintiffs'  counsel  recognise  them  t"  be, 
and  as.  indeed,  they  have  been  recognized  to  be,  and 
their  payment  provided  for,  in  new  county  stock,  by  an 


184 


Act  of  the  Legislature,  for  the  consolidation  of  the  debt 
of  the  county  of  New  York,  (Sess.  Laws  1871.  chap.  323) 
if  there  was  a  comity  of  New  York  having  capacity  to 
own  property,  it  is  difficult  to  understand  how  and  why 
the  money  in  question  was  not  the  money  of  the  county, 
and  if  such  county  of  New  York  has  capacity  to  sue,  it 
is  difficult  to  understand  how  and  why  it  is  not  the  pro- 
per party  authorized  to  maintain  an  action  for  the  cause 
of  action  shown  by  the  complaint  to  exist  against  this 
defendant. 

The  county  of  New  York  is  one  of  the  counties  into 
which  the  State  is  divided.  vl  R.  &,  83.  1st  Ed.  Consti- 
tution of  the  State.  Art.  3,  §  3.)  By  Chap.  12,  Title  1, 
Art.  1  of  the  Revised  Statutes,  it  is  enacted  as  follows: 

§  1.  Each  county,  as  a  body  corporate,  has  capacity — 

1.  To  sue  and  be  sued,  in  the  manner  prescribed  by 
law. 

2.  To  purchase  and  hold  lands,  within  its  own  limits, 
for  the  use  of  its  inhabitants,  subject  to  the  power  of  the 
Legislature  over  such  limits. 

3.  To  make  such  contracts  and  to  purchase  and  hold 
such  personal  property  as  may  be  necessary  to  the  exer- 
cise of  its  corporate  administrative  powers. 

§  3.  All  acts  and  proceedings  by  or  against  a  county, 
in  its  corporate  capacity,  shall  be  in  the  name  of  the 
Board  of  Supervisors  of  such  county. 

§  4  The  powers  of  a  county  as  a  body  politic  can  only 
be  exercised  by  the  Hoard  of  Supervisors  thereof,  in  pur- 
suance of  a  resolution  by  them  adopted.  (1  It.  N,  364. 
1st  Ed.) 

I  see  no  reason  to  doubt  that  these  provisions  apply  as 
well  to  the  county  of  New  York  as  to  all  the  other  coun- 
ties of  the  State  ;  and  if  they  do,  that  county  has  capacity 
to  own  money  and  to  bring  suit  to  recover  it  from  one 
having  wrongful  possession  of  it. 

The  learned  counsel  for  the  plaintiff  endeavor  to  sepa- 
rate the  county  of  New  York  from  the  other  counties  of 
the  State  in  respect  to  these  powers,  and  to  show  that  it 
was  not  intended  by  the  Revisers,  nor  the  Legislature,  to 
invest  it  with  the  corporate  powers  and  capacity  which 


Article  1, above  referred  to,  gives,  in  terms,  to  "each 
county." 

This  is  argued  from  the  fact  that,  in  the  1st  Article  of 
Title  2  of  Chap.  12,  ahove  referred  to,  which  is  entitle*  1 
"of  the  Hoards  of  Supervisors,"  the  last  section  (§  17i 
has  this  provision:  "  The  Mayor,  Recorder,  and  Alder- 
men of  the  city  of  New  York  shall  he  Supervisors  of  the 
city  and  county  of  New  York,  and  all  the  provisions  of 
this  article  shall  he  construed  to  extend  to  them  respec- 
tively, except  where  special  provisions,  inconsistent  there- 
with, are  or  shall  he  made,  by  law,  in  relation  to  the  city 
and  county  of  New  York."  (1  R.  368,  j;  17.  1st  Ed.) 
And  also  that  in  Article  '1.  of  the  satne  title  and  chapter, 
entitled.  "Of  the  County  Treasurer,"  it  is  provided  that 
"the  Chamberlain  of  the  city  and  county  of  New  York 
shall  be  considered  the  County  Treasurer  thereof,  and 
all  the  provisions  of  this  article  shall  be  construed  to  ap- 
ply to  him  except,"  Arc.  as  in  section  IT  above.  1 1  R.  S.% 
370,  §  29,  1st  Ed.) 

Based  upon  these  sections,  the  learned  counsel  for  the 
plaintiff  say  :  "  It  will  he  observed  that  in  these  parts  of 
their  systematic  revision  the  editor,  by  using,  in  each  in- 
stance, the  word  artirlr  instead  of  the  word  chapter,  indi- 
cated their  conception  thai  it  was  these  article-  alone  that 
should  have  any  operation  within  rhe  city  and  county  of 
New  York.  The  articles  which  declare  counties,  or  their 
Hoards  of  Supervisors,  to  he  corporate  bodies,  and  as  such 
capable  of  suing  and  being  sued,  were  not  thus  made  ap- 
plicable." 

The  learned  counsel  for  the  plaintiff  can  seareeh  be 
supposed,  from  this  view  of  the  scope  and  object  i»f  the 
provisions  of  the  two  sections  quoted  from  article  I  ami 
2,  to  have  examined  them,  and  tin-  other  parts  of  the 
chapter,  with  due  care.  When  in  17.  of  article  1.  it  is 
provided  that  all  the  provisions  of  this  irtirl,  shall  be 
construed  to  extend  t<>  the  Mayor,  Arc.  a-  Supervisors, 
nothing  more  was  done  than  is  common  when  an  officer 
already  in  existence  is  by  statute  invested  with  tin-  char 
acter  of  another  officer  viz.,  to  go  further,  and  invest 
him  with  the  power.-  and  duties  of  >uch  other  officer. 
The  same  may  be  said  a-  to  the  provision  in  5'  29  of 


186 


article  2.  The  application  of  the  provisions  of  the 
chapter,  in  these  cases,  instead  of  the  article,  would  have 
been  quite  inappropriate  and  impossible. 

The  provisions  of  the  chapter  extend  far  beyond  the 
scope  of  the  powers  and  duties  of  Boards  of  Supervisors 
or  County  Treasurers.  It  includes  provisions  entirely  in- 
applicable to  those  officers — treating,  for  example,  in  its 
different  articles,  "of  the  powers  and  rights  of  counties 
as  bodies  corporate,''—''  of  the  effects  of  a  division  of  a 
county  on  its  corporate  rights  and  liabilities," — "of  loan 
officers  and  commissioners  of  loans.'1 — "  of  the  Clerks  of 
counties," — "  of  Sheriffs  and  Coroners," — "of  Surrogates^ 
of  District  Attorneys,  and  of  v  arious  other  matters  having 
no  relation  to  Boards  of  Supervisors  or  County  Treasurers. 
The  application  of  the  provisions  of  the  chapter  to  the 
Mayor,  ifcc,  as  Supervisors,  or  to  the  Chamberlain,  as 
County  Treasurer,  would  extend  to  them  provisions  relat- 
ing to  those  other  officers  and  subjects,  and  would 
he  unmeaning  and  absurd.  It  is  evident,  from 
an  examination  of  the  chapter,  thai  the  use  of 
the  word  article  instead  of  the  word  chapter  in 
the  sections  above  referred  to  carries  with  it  no 
implication  of  an  intention  of  the  Legislature  that  it 
was  those  t  wo  articles  alone  that  were  to  have  application 
within  the  city  and  county  of  Xew  York.  The  article 
giving  counties,  as  corporate  bodies,  capacity  to  hold 
property  and  to  sue,  is  not,  by  the  effect  of  the  provision 
in  Sections  17  and  29  respectively,  expressly  or  by  impli- 
cation, limited  in  its  application,  so  as  to  not  include  the 
county  of  New  York  ;  and  there  is  no  where  manifested 
in  this  chapter  or  any  where  in  the  Revised  Statutes,  an 
intention  to  except  the  county  of  Xew  York  from  the 
operation  of  that  article. 

Neither  is  there  anything  in  the  circumstance  that 
the  territory  and  the  inhabitants  of  the  city  and  county 
are  identical,  as  plaintiff's  counsel  claims  there  is,  which 
at  all  detracts  from  the  right  of  the  county  to  claim  a 
separate  corporate  existence,  notwithstanding  the  city 
charter  confers  upon  the  municipal  corporation  all  the 
powers  ot  local  government.  The  learned  counsel  of 
the  plaintiffs  admit  that  the  Legislature  could  set  aside 


1  s7 


and  disregard  the  common  law  rule  stated  by  Ashhurst, 
J.,  in  Rex.  vs.  Amory  (2  Term  /?.,569).  "that  there  can- 
not exist  in  the  same  place  two  independent  corporations 
with  general  powers  of  go\ eminent."  In  this  case  there 
can  he  doubt  that  the  Legislature  has,  by  clear  expression 
to  that  effect,  created  two  governmental  corporations  in 
the  same  place,  having  similar  powers,  privileges  and 
jurisdictions. 

Mr.  Justice  Strong,  in  The  PeopU  Edmonds  (15 
Barb.,  539),  says  "  Manhattan  bland,  with  the  adjacent 
islands,  was  constituted  a  county  by  a  law  of  the  first 
Legislature  ever  held  in  the  colony  of  New  York,  on  the 
first  of  November,  1683.  It  has  been  designated  as  a 
county  in  all  the  subsequent  Acts  dividing  this  State 
into  counties.  It  takes  its  organization  as  a  county  in  der 
the  general  laws  of  the  coli  ny  and  of  the  State,  and  not 
under  its  charter  as  a  city.  The  inhabitants,  in  effect, 
constitute  two  corporations— one  as  a  county,  under  the 
general  laws  of  the  State  (1  R.  -V.  364),  and  the  other  as 
a  city  under  their  charter." 

Although  the  history  of  legislation  in  respect  to  the 
county  of  New  York  and  the  practice  under  it  has  been 
invoked  to  prove  that  the  county  has  lieen  treated  as  ex- 
cepted from  the  provision  of  law.  making  if  a  body  cor- 
porate, with  capacity  to  sue,  &c,  we  have  been  pointed 
to  no  Act  or  Acts  of  the  Legislature  passed  81  nee  the  Re- 
vised  Statutes  came  into  operation,  whereby  that  provis- 
ion has  been  repealed  or  abrogated  :  nor  to  any  law 
doing  away  the  effect  upon  the  county  of  New 
York  of  the  provision  contained  in  >ect:on  '.'•_> 
of  Art.  4,  Title  4,  Chap.  8  of  Part  'A  of  the  Revised 
Statutes  (2  /.'.  &,  47::.  1st  ><l.\.  to  the  effect  that  "  actions 
may  be  brought  by  the  Supervisors  of  the  county  *  *  * 
to  enforce  any  liability  or  any  duty  enjoined  by  law.  to 
such  officers,  or  the  body  which  they  represent.  ::'  *  * 
and  to  recover  damages  for  any  injuries  done  to  the  pro- 
perty or  rights  of  such  officers,  or  the  bodies  represented 

bj  them." 

For  aught  that  I  have  been  able  t"  discover,  these 
statutes  remain  in  full  force,  not  superseded  bj  the  vari- 
ous statutes  passed  with  reference  to  the  cit\  and  county 


188 


of  New  York,  but  in  most  of  these  statutes,  the  existence 
of  the  county  of  New  York,  and  until  1857,  of  the  Board 
of  Supervisors  of  the  county,  as  established  by  the  Re- 
vised Statutes  as  above  stated,  have  been  recognized.  In 
1857,  an  Act  was  passed  for  the  election  of  twelve  Super- 
visors to  constitute  the  Board  of  Supervisors  of  the 
county  {Chap.  590,  Lmos  of  1857).  This  organization  of 
the  Board  continued  until  1870,  when  an  Act  was  passed 
{Chap.  190,  Laws  o/1870),  making  the  Mayor,  Recorder 
and  Aldermen  of  the  city  again  the  Board  of  Super- 
visors of  the  county  of  New  York,  and  providing  that 
"  all  the  powers  and  duties  conferred  by  general  or  special 
laws  upon  the  Board  of  Super  visors  of  the  city  and 
county  of  New  York,  or  upon  any  Supervisor  thereof, 
*  *  *  shall  respectively  belong  to,  be  devolved  upon, 
and  be  thereafter  fully  possessed  and  exercised  respec- 
tively by  the  Board  of  Supervisors  constituted  by  this 
Act,  or  by  any  Supervisor  thereof." 

This  capacity  to  sue,  in  the  name  of  its  Board  of 
Supervisors,  expressly  given  by  statute  to  the  county  of 
New  York,  is  not  affected  by  the  circumstance  that  the 
Board  of  Supervisors  of  that  county  has  been — by  spe- 
cial provisions  of  law  in  relation  to  the  city  and  county 
of  New  York,  inconsistent  with  some  of  the  general 
powers  conferred  upon  Boards  of  Supervisors  of  coun- 
ties— restricted  in  its  powers  and  duties.  Nor  is  it 
necessary,  to  the  preservation  of  such  capacity,  that  it 
should  be  "  the  sole  general  legal  representative  of  all 
public  or  common  interests  of  the  county's  inhabitants  or 
taxpayers.''  The  Board  of  Supervisors  of  the  county  of 
New  York  is  still  the  representative  of  the  inhabitants  of 
the  county,  in  reference  to  the  property  and  finances  of 
the  county,  and  still  authorized  to  bring  actions  for  their 
preservation. 

By  virtue  of  the  corporate  power  given  it,  by  Article  1, 
of  Title  1,  Chap.  12  of  the  Revised  Statutes,  above  referred 
to,  the  county  of  New  York  does,  in  fact,  hold  both  real 
and  personal  property;  a  portion  of  its  real  property  is  the 
Court  House  site  and  building  erected  thereon  (Lavjs  of 
1861,  c/uip.  161).  If  an  actum  should  become  necessary 
to  obtain  possession  of  the  Court  House  from  some  un- 


ISO 


authorized  occupant,  can  ir  be  doubted  that  Bucfa  action 
must  be  brought  in  the  name  of  the  Board  of  Supervisors 
of  the  county  '.  I  think  the  learned  counsel  for  the  plain- 
tiffs would  scarcely  venture  t<»  bring  such  action  in  the 
name  of  the  people  of  the  State,  or  of  any  other  plaintiff 
than  the  Board  of  Supervisors  of  the  countv  of  New 
York. 

In  the  face  of  the  statutory  authority  of  the  county  to 
sue,  the  fact  cannot  avail  that  no  suit  has  ever  been  brought 
by  the  Supervisors,  except  those  mentioned  in  the  com- 
plaint as  brought  by  the  direction  of  the  Mayor — if  such 
is  the  fact,  as  claimed  by  plaintiffs'  counsel. 

In  regard  to  the  cases  cited,  in  which  actions  brought 
against  the  Hoard  of  Supervisors  were  not  sustained 
{Phoenix  vs.  The  Board  of  Sujicrrlxorx  of  Xcw  York. 
not  reported,  and  Brady  vs.  T/f  same,  '1  Snndf.  S.  ( '. 
B.,  4»!0,  and  8.  Con  Appeal,  1"  .V.  Y.  #.,260),  it  is  to  be 
observed  that  they  were  both  actions  brought  upon  ac- 
counts of  the  plaintiffs  against  the  county.  The  reason 
why  the  action  was  not  sustained  in  the  latter  case  was 
not  because  the  countv  had  no  capacity  to  be  sued  in  the 
manner  prescribed  by  law  ;  but  because,  by  the  statute, 
the  Hoard  of  Supervisors  is  made  the  forum  in  which 
such  claims  against  the  county  are  to  be  settled  and  ad- 
justed. In  the  lan<rua>;e  of  Oakley.  Cfa.  .1. :  "'They  area 
judicial  body  constituted  by  law  to  decide  on  all  matters 
of  account  between  individuals  and  the  public  body  com- 
prising the  county  which  they  represent  ;"  and  he  fur- 
ther says,  the  statute  "  allows  no  appeal  from  their  de- 
cision." This  is  now  well  settled  law.  and  it  is  to  be  pre- 
sumed that  the  case  of  Phoenix  vs.  77if  Board,  cVrc  ,  was 
decided  upon  the  same  ground. 

In  regard,  then,  to  the  oapacity  of  the  county  of  New 
York,  by  its  Board  of  Supervisors,  to  sue.  I  do  not  think 
there  can  exist  a  doubt. 

Hut  it  is  claimed,  on  behalf  of  the  plaintiffs,  as  another 
reason  why  it  cannot  3U6  f  or  these  moneys,  that  the  coun- 
ty suffers  no  prejudice  from  their  loss.  "It-  dei.ts."  ir  is 
said,  "'if  it  had  any.  were  not  left  unpaid — thev  were 

overpaid." 

True,  the  debts  which  it  raised  the  money,  on  its  bonds, 


190 


to  pay,  were  paid  and  overpaid,  but  the  money  with 
which  ir  paid  them,  before  it  was  appropriated  for  that 
purpose,  was  its  money,  and  the  overplus  has  riot  ceased 
to  belong  to  it. 

Again,  it  is  said.  "  itscorporate  treasury,  if  it  has  one,  is 
not  to  sufter  any  detriment.  The  State,  by  its  taxing  pow- 
er, has  forced,  oris  to  force,  the  payment  of  the  bonds  by 
the  taxpayers,"  and  hence  it  is  concluded  that  the  taxpayers, 
whoever  they  may  happen  to  be  when  the  tax  is  levied  and 
collected,  alone  are  to  suffer,  and  of  those  taxpayers,  the 
comity  is  not  the  mrntor,  and  has  no  authority  to  bring-  suit 
t<>  preserve  or  vindicate  their  rights.  To  this,  the  answer 
just  made  to  the  last  proposition  of  plaintiff's  counsel  is 
sufficient.  This  suit  is  not  brought  to  preserve  or  vindi- 
cate the  rights  of  the  taxpayers,  the  money  for  the  fraud- 
ulent obtaining  of  which  from  the  county  treasury  the 
suit  is  brought,  was  the  county's  money,  and  the  circum- 
stance that  the  ultimate  sufferers  are  the  persons  who 
shall  be  the  taxpayers  when  the  money  shall  be  raised  by 
tax  to  pay  the  bonds,  is  immaterial,  and  whether  they can 
be  represented  by  the  corporation  is  immaterial.  Defen- 
dants have  possessed  themselves  of  the  money  of  the 
count v,  and  it  comes  back  to  the  same  result,  the  county 
must  sne  for  it  in  the  manner  provided  by  law. 

The  authorities  cited  to  show  that  municipal  corpo- 
rations have  uo  standing  in  Court  to  protect  or  vindicate 
the  individual  rights  of  their  taxpayers,  or  inhabitants, 
have  no  applicability  ;  and  the  idea  upon  which  they  are 
supposed  to  be  applicable,  that  it  is  the  persons  who  are 
eventually  to  pay  the  tax,  by  which  the  money,  to  make 
up  the  loss  of  the  money  in  question,  is  to  be  raised,  who 
are  the  sufferers  by  such  loss,  and  who  are  to  be  repre- 
sented in  any  suit  to  recover  back  the  money  taken,  is  a 
mistaken  one.  Such  ultimate  and  indefinite  interest 
creates  no  cause  of  action,  and  such  persons  are  not,  in 
anv  respect,  to  be  represented  in  the  action  to  recover 
back  the  money. 

Nor  can  1  regard  the  proposition  that  any  obligation  of 
any  kind  attached  to  the  State  in  consequence  of  the  rais- 
ing of  the  money,  pursuant  to  the  Act  of  the  Legislature, 
or  the  mal-conduct  of   the  officers  designated   by  the 


191 


Legislature  to  raise  it.  or  audit  the  accounts  on 
which  it  was  to  be  paid,  as  well  founded.  There  is 
no  more  ground  far  calling  upon  the  State  hi  make  good 
the  loss,  than  there  would  be  in  every  ease  of  loss  of 
moneys  raised  under  the  annual  tax  laws  for  the  city  and 
county  of  New  York,  occurring  by  the  wrongful  acts  of 
the  officers  through  w  hose  agency  it  was  raised.  The 
money  is  raised  in  such  case  in  pursuance  of  Acts  of  the 
Legislature,  and  through  the  agency  of  officers  designated 
by  Acts  of  the  Legislature,  as  in  this,  and  if  in  this  case 
the  principle  is  adopted  that  the  State  is  liable  for  the 
loss,  in  the  other  similar  cases  referred  to  it  must  be 
held  liable  also.  In  the  supposed  cases.  I  scarcely  think 
it  would  be  seriously  claimed  that  the  State  would  he 
liable. 

So  far  the  questions  considered  seem  to  me  plain  and 
easy  of  solution,  and  the  only  difficulty  in  the  case  arises 
upon  the  the  point  raised  under  the  allegations  in  the 
complaint,  showing  complicity  of  all  officers  of  the 
county  having  authority  to  sue  for  the  county,  with  de- 
fendant Tweed  ;  and  that  they  all  intend  to  prevent  the 
prosecution  of  any  suit  for  the  recovery  of  the  money  in 
question. 

The  principle  upon  which  it  is  said  the  Attorney-Gen- 
eral may  intervene  in  such  cases,  rests  upon  the  idea  of  a 
public  trust  existing  in  the  officers,  through  whose  mal- 
feasance the  money  was  lost  to  the  county,  and  it  is 
claimed  that  the  people  of  the  State,  through  their  At- 
torney-General, may,  through  the  Courts,  ex  mere  BftOfu, 
intervene  to  prevent  or  redress  injuries  from  breaches  of 
such  trust. 

In  vindication  of  this  proposition,  a  long  list  of  cases 
is  cited  from  the  English  reports  and  others.  The  princi- 
ple deemed  to  he  established  by  those  ea>e>  it  i:-  neither 
necessary  nor  pertinent,  as  it  seems  to  me,  to  discuBB,  in 
determining  the  questions  before  us  upon  this  demurrer. 
It  is  to  he  remembered  that  the  cases  cited  by  the  learned 
counsel  for  the  plaintiffs  were  suits  in  equity,  containing 

proper  averments  ou  which  to  found  the  prayer  for 

relief  in  equity,  and  in  which  >uit>  such  relfef  was  de- 
manded. 


192 


Although,  bv  the  Code,  the  distinction  between  actions 
at  law  and  suits  in  equity  are  abolished,  (Code,  §69) 
still  the  essential  distinction  between  legal  and  equitable 
causes  of  action  is  not  abolished,  and  in  pleading,  when 
equitable  relief  is  sought,  it  is  still  necessary  to  set  forth 
an  equitable  cause  of  action.  {Ileywood  vs.  The  City  of 
Buffalo,  14  N.  Y.  7?.,  540.  Onderdonk  vs  Mott,  34 
Barb.,  106,  112.) 

The  case  at  bar  is  in  no  respect  an  equity  suit,  but 
simply  an  action  at  law,  to  recover  the  money  alleged  to 
have  been  taken  by  the  defendants,  and  to  recover  it,  not 
as  money  of  any  cestui  que  trust,  and  for  such  cestui 
que  trust,  but  as  the  money  of  the  plaintiffs  themselves, 
and  for  their  own  use. 

If  the  people  had  come  into  Court,  by  their  Attorney - 
Greneral,  setting  up  the  fact  that  the  defendants,  having 
in  their  hands  moneys  of  the  county  of  New  York,  for 
the  purpose  of  paying  the  debts  of  said  county,  had 
broken  the  trust  committed  to  them,  and  converted  the 
moneys  to  their  own  use,  and  that  the  officers  of  the 
county,  who  could  sue  them  for  the  county,  were  colluding 
with  the  defendants,  and  refusing  to  proceed  against 
them  to  protect  the  rights  of  the  county,  then  a 
case  would  be  shown,  perhaps,  entitling  the  Attorney- 
General  to  intervene,  and  ask  the  Court  to  compel 
the  defendants,  as  in  the  case  of  The  Attorney-General 
m  the  Mayor  of  Dublin  (1  Bl'ujh  N.  8  ,313,)  "to  replace 
the  money  they  had  wrongfully  taken  and  misap- 
propriated.'" 

But  no  such  cause  of  action  is  set  forth  in  the  com- 
plaint in  this  case.  The  plaintiffs,  as  already  intimated, 
proceed  upon  the  assumption  that  the  money,  which  was 
misappropriated  and  converted  by  the  defendants,  was 
their  money,  and  that  they  are  entitled  to  recover  it  for 
their  own  use.  None  of  the  cases,  on  which  the  learned 
counsel  for  the  plaintiffs  rely  as  authority  for  maintain- 
ing this  action,  are  such  cases  as  this.  In  none  of  them 
does  the  Attorney-General,  any  more  than  in  the  Dublin 
case  referred  to — which  is  the  case  principally  relied 
upon  by  the  plaintiffs — bring  suit  to  recover  funds  mis- 
appropriated by  a  trustee,  for  the  benefit  of  the  crown  ; 


L93 


and  if  in  any  of  them  it  is  sought  to  recover  moneys  so 
misapplied,  it  is  for  the  benefit  of  the  parties  entitled  r<» 
them. 

Upon  a  demurrer  to  a  com]. hunt  upon  the  ground  that 
it  does  not  state  facts  sufficient  to  constitute  a  cause  of 
action,  in  favor  of  the  plaintiff.-,  when  the  complaint  has 
only  such  scope  and  object  as  above  mentioned  in  regard 
to  this  complaint,  and  <>  recovery  upon  which  tniist  be 
for  the  benefit  of  the  plaintiffs  themselves,  1  do  not 
think  it  an  answer  that  the  plaintiffs  might  have  brought 
a  suit  in  equity  to  recover  hack  the  money  for  the  benefit 
of  the  cestui  que  trust.  .No  such  suit  i>  here  brought) 
and  no  right  appears  in  the  Attorney  * General  to  bring 
such  a  suit,  in  the  name  of  the  people,  as  is  here 
brought. 

If  it  could  be  held  that  the  Attorney-General  might 
maintain  the  action,  in  the  name  of  the  people,  by  reason 
of  the  collusion  alleged,  or  of  any  breach  of  trust  shown, 
then  it  is  most  manifest  that  the  county  of  New  York,  by 
its  Board  Of  Supervisors,  should  have  been  made  a  party 
defendant  for,  as  we  have  seen,  the  money  taken  be- 
longed to  the  county,  and  not  to  the  State.  The  county, 
then,  is  a  parry  in  interest,  and  as  it  cannot,  by  reason  of 
the  default  of  its  officers,  stand  in  its  proper  place  as 
plaintiff,  or,  as  the  proceeding  is  for  the  benefit  of  the 
county,  as  cegtili  que  trust,  it  is  necessary  that  it  should 
be  in  Court  as  a  party  defendant,  that  it-  right-  may  he 
protected. 

Although,  in  view  of  the  circumstances  of  this  ease.  I 
should  have  been  glad  to  sustain  the  action  as  brought, 
vet  I  have  been  unable  to  agree  with  the  learned  counsel 
for  the  plaintiffs  in  holding  that  it  can  lie  sustained  upon 
anv  of  the  giounds  suggested  by  them,  or  upon  any 
grounds  consistent  with  the  well  settled  rules  of  law. 

If  the  difference  between  the  parties  upon  the  qiU38' 

tione  raised  by  the  demurrer  was  i  mere  formal  or  tech- 
nical one,  it  might,  perhaps,  in  the  interest  of  justice, 
have  been  disregarded.  l'»ut  the  difference  i-  Milxtantial 
and  radical,  and  goes  to  the  foundation  of  every  action 
brought  in  a  Court  of  .Justice 

I  cannot,  therefore,  avoid  the  conclusion  that  the  de 


194 


murrer  is  well  taken,  upon  the  ground  that  no  cause  of 
action  in  favor  of  the  plaintiffs  is  set  forth  in  the  com- 
plaint. Also  upon  the  ground  that,  if  the  people  can 
maintain  the  action  there  is  a  defect  of  parties  defendant 
in  the  omission  of  the  county  of  New  York  by  its  Board 
of  Supervisors. 

1  am,  therefore,  of  the  opinion,  that  the  order  appealed 
from  must  be  reversed,  and  the  demurrer  sustained-,  with 
costs. 

(A  copy.)  C.  N.  MATSON, 

.  6*W. 

An  order  was  entered  accordingly,  in  each  case,  affirm- 
ing the  decision  of  rhe  Special  Term,  by  which  the  de- 
fendants' demurrer  was  overruled.  Leave  was  given  to 
each  defendant  to  withdraw  his  demurrer  and  answer  in 
twenty  days,  on  payment  of  costs. 


19fi 

SUPREME  COURT — GENERAL  TERM. 
TJt  ird  Depa  /  fm  t  n  t. 

\ 


The  People  of  the  State  <>f  N 


ew  York  J 

..  .  I 


■  Miller.  Pot- 
\  ter  and  Par 

Thomas  C.  t  ields,  impleaded  witL  the/  KER<  Jus- 
Mayor,  Aldermen  and  Commonalty  of  i  tices. 
the  Citv  of  New  York. 


This  was  an  action  brought  to  recover  of  the  de- 
fendant. Thomas  ('.  Fields,  a  large  amount  of  moneys 
obtained  from  the  Comptroller  of  the  citv  of  Xe\v 
\  ork  by  the  fraudulent  and  corrupt  means  of  false 
and  fictitious  claims,  which  he  procured  to  be  audited 
and  adjusted  by  the  said  Comptroller,  and  obtained 
payment  of  such  claims  from  the  said  Comptroller 
The  said  moneys  were  obtained  by  said  Fields  under 
color  of  the  pro  visions  of  two  statutes  of  the  Leg- 
islature of  this  State,  one  passed  May  12,  1S6(J,  chapter 
^Tfi.  the  seventh  section  of  which  directed  the  Comp- 
troller of  the  city  of  Xew  York  to  audit,  adjust  and  pav 
the  claims,  not  to  exceed  the  sum  of  $50,(MX),  to  the 
members  of  certain  engine  and  hook  and  ladder 
companies  specified,  which  were  organized  under  the 
direction  of  the  Metropolitan  Department,  designated 
"  suburban  companies."  The  said  Comptroller  was 
by  said  Act  authorized  and  directed  to  raise  the 
money  necessary  to  pay  the  sum  or  sums  which  might 
be  found  due  said  members  of  said  Fire  Depart- 
ment. &e.,  on  said  claims  as  aforesaid,  on  the  stock  of 
the  city  of  New  York:  the  stock  to  be  issued  in  the 
usual  form,  and  to  be  called  the  "Fire  Depart- 
ment stock,''  payable  thirty  years  after  its  date,  with  in- 
terest. The  Hoard  of  Supervisors  of  the  countv  of 
Xew  Fork  were  therein  authorized  and  directed  to  order 
and  cause  to  be  raised  by  tax  upon  the  estates,  bv  law 
subject  to  taxation  within  said    city  and  countv.  an 


L97 


amount  sufficient  to  pay  the  annual  Interest  and  to  redeem 
said  stock  at  maturity. 

The  complaint  alleges  that  under  this  provision  cer- 
tain claims  were  presented  to  the  Comptroller,  and  were 
audited  and  adjusted  and  fully  paid  by  him,  amounting 
to  §40,277. #4 ;  that  the  defendant-,  hy  himself  and  hie 
agents,  conducted  the  whole  business  of  presenting1  such 
claims,  and  received  from  the  Comptroller  all  the  moneys 
so  paid  by  him,  except  the  sum  of  §245,  which  was  paid 
to  John  Hart;  that  the  claims  so  audited,  adjusted  and 
paid  were  the  only  claims  which  at  any  tune,  prior  to  a 
certain  other  Act,  passed  in  1870,  were  audited,  adjusted, 
or  found  to  he  due  to  any  person  or  persons  under  the 
provisions  of  said  Act  of  1SG0,  either  by  the  Comptroller 
or  by  any  other  officer  or  person.  The  complaint  further 
alleges  that  the  2(ith  April,  187".  by  the  seventh  sec- 
tion of  another  Act  of  the  Legislature,  entitled  "  An 
Act  to  make  further  provision  for  the  government  of 
the  city  of  New  York,"  [Chap.  HS'S  Laves  of  1870,] 
the  said  Comptroller  whs  authorized  and  directed 
to  pay  the  claims  which  had  been  found  to  he 
due  to  the  members  of  the  same  Engine  Companies 
and  Hook  and  Ladder  Companies,  under  the  provisions 
of  said  first-mentioned  seventh  section  ;  and  to  raise  the 
additional  amount  required  for  such  purpose  by  the  issue 
of  stock  of  the  city  of  New  York,  in  Like  manner  as  pro- 
vided by  said  first  above  mentioned  seventh  section,  and 
the  interest  and  principal  thereof  to  be  raised  also  in 
the  like  manner  as  the  same  first-above  mentioned  seventh 
section  provided:  that  there  was  not  at  any  time  subse. 
qnently  to  the  said  first  day  of  January.  1868,  any  just, 
lawful,  equitable  or  other  claim  of  any  members  or  mem- 
ber of  any  of  the  said  companies  ;  that  the  said  Thomas 
C.  Fields,  well  knowing  the  premises,  but  falsely  and 
corruptly  intending  to  defraud  the  public  of  the  moneys 
hereinafter  next  mentioned,  did  cause  to  he  made  out,  in 
writing,  certain  new,  false  and  fictitious  claims,  amount- 
ing in  the  aggregate  to  the  further  sum  of  §4.V.t,;»72.70.  in 

the  names  ol  the  same  persons  respecti\ely,who>e  pretended 

claims  had  already  heen  so  audited,  adjusted,  and  fully 
paid  as  ahove  stated,  and  for  the  same  identical  pretend 


198 


ed  causes  of  claim,  respectively,  as  had  been  so  as  afore- 
said respectively  passed  upon,  audited,  adjusted  and 
paid  in  full,  as  aforesaid  ;  and  after  the  passage  of  the 
said  Act  of  LS7<>,  that  is  to  say,  on  . I  line  3,  187",  did 
present  such  new  claims  to  the  said  Comptroller,  and,  as 
pretended  assignee  of  the  claimants  in  such  new  claims, 
obtained  payment  from  him.  said  Comptroller,  as  upon 
such  new  claims,  of  the  whole  sum  of  money  last  above 
mentioned.  That  the  said  Thomas  ( '.  Fields  was  a  mem- 
ber of  the  Legislature  which  adopted  the  said  Act  of 
lST",  and  was  a  promoter  of  said  Act  ;  that  before  such 
Act  he  had  arranged  and  organized  measures  for  procur- 
ing the  passage  of  such  Act,  and  fraudulently  obtaining 
the  assent,  real  or  apparent,  of  said  pretended  claimants 
of  such  new  claims  respectively,  to  the  use  of  their 
names,  for  the  purpose  of  giving  color  to  such  new 
claims,  and  investing  himself,  said  Fields,  with  a  formal 
or  apparent  assignment  from  such  last  mentioned 
claimants  respectively,  of  such  new  claims  respectively, 
and  did.  on  the  said  third  day  of  .1  uue,  cause  himself 
to  be  recognized  by  said  Comptroller  and  the  Mayor  of 
said  city  as  such  assignee,  and  thereby  obtained  the  said 
last-mentioned  sum  of  money,  which  last-mentioned  sum 
of  money  was  raised  for  the  ptupose  of  such  payment 
thereof  by  means  of  stock,  as  directed  in  said  Act  of 
1870,  and  sold  on  that  occasion  to  buna  jide  purchasers. 
And  the  said  plaintiffs  further  say  that  the  said  Thomas 
( Fields  had  agreed  with  said  pretended  claimants  of 
said  new  claims  before  the  passage  or  promotion  of  said 
Act  of  1*7<>.  or  any  of  his  said  acts  and  doings  concern- 
ing the  procurement  of  said  last-mentioned  sum  of  money, 
that  he.  the  said  Thomas  C.  Fields,  should  keep  and  retain, 
lor  his  own  benefit,  as  a  reward  for  his  agency  in  procuring 
such  last-mentioned  sum,  one  equal  moiety  or  half  part,  of 
all  the  said  pretended  new  claims,  and  that  he,  the  said 
Thomas  ( '.  Fields,  did  accordingly  retain  such  half  part  of 
such  last  mentioned  payment  or  more.  That  ever  since  the 
last-mentioned  fraudulent  payment  to  the  said  Thomas  C. 
Fields,  the  Mayor,  Aldermen  and  Commonalty  of  the  city 
of  New  York,  and  all  their  several  officers,  if  any,  who 
might  or  could  exercise  any  power  or  authority  in  the  prem- 


199 


ises,  and  the  Board  of  Superv  isors  of  the  county  of  New 
Fork,  and  all  their  several  officers  who  could  exercise 
any  power  or  authority  in  the  premises.  have,  w  ith  notice 
and  full  knowledge  of  such  payment  and  of  its  fraudu- 
lent nature,  acquiesced  in  and  still  do  acquiesce  in  such 
fraudulent  misapplication  of  the  said  moneys,  and  at  all 
times  since  such  application  were,  and  still  are.  colluding 
and  conniving  with  the  said  Thomas  0.  Fields  in  the 
fraud  aforesaid,  and  in  protecting  him  from  responsibility 
for  the  same  by  anv  judicial  means  or  remedies.  And 
the  plaintiff  demands  judgment  to  recover  the  said  sum 
of  §459,977.79,  with  interest. 

The  defendant  demurred  to  the  complaint,  and  set 
forth  the  causes  of  demurrer,  which  will  appear  in 
the  opinion. 

Charlks  O'Conok  and  \V.  11.  Pbokham  tor  the  people 
and  W.  A.  Beach  for  defendant. 

By  thk  Coirt.     Potter,  .Justice. 

First. — The  complaint,  in  my  opinion,  does  state  facts 
sufficient  to  constitute  a  cause  of  action.  It  charges  that 
the  defendant,  falsely  and  corruptly  intending  to  defraud 
the  public,  and  by  means  of  false  and  fictitious  claims, 
obtained  payment  from  the  Comptroller  of  the  city  of 
New  York  upon  such  false  and  fraudulent  claims  to  the 
amount  of  £459.977.79.  For  the  purposes  of  this  case 
this  charge  is  admitted  t«>  be  true.  Money  obtained  by 
fraud  and  falsehood,  by  false  pretences  <>r  fraudulent  rep- 
presentations,  is  recov  erable  by  action.  The  first  cause  of 
demurrer  is  not.  therefore,  well  taken. 

Second. —  The  second  cause  of  demurrer,  that  the  com- 
plaint does  not  >tate  facts  sufficient  to  constitute  a  right 
of  action  in  favor  of  the  plaintiffs,  c<>mes  within  the  rale 
of  our  decision,  in  the  case  of  the  People  M.  Tweed  and 
Connolly,  and  k  not.  therefore,  well  taken.  The  Comp- 
troller of  the  city  of  New  York,  by  the  seventh  section 
of  the  Act  of  I860,  chapter  870,  vv  as  created  or  appointed 
a  trustee  to  audit,  adjust  and  pav  certain  claims  of  err 
lain  membei>  of  engine  and  hook  and  ladder  companies 

therein  specified,  and  was  authorised  and  directed  to 


200 


raise  money  to  pay  the  same,  to  an  amount  not  exceed- 
ing $50,000.  In  pursuance  of  this  authority  and  trust, 
as  is  alleged  and  admitted,  the  said  Comptroller  did  au- 
dit, adjust  and  pay.  from  moneys  obtained  by  virtue  of 
his  authority,  all  the  claims  of  said  engine  companies,  &c, 
that  had  been  presented  ;  that  these  claims  fell  w  ithin  the 
said  limit  of  £5<»,ou0,  and  were  the  only  claims  found 
due  by  the  Comptroller  to  such  companies  prior  to  the 
Act  of  1870,  hereinafter  referred  to.  C'nder  the  pro- 
\isions  and  limitations  of  the  Act  of  18fi9  but  ahout 
$722. (H>  remained  w  ithin  the  power  of  the  Comptroller 
to  audit  and  pay.  The  payment  of  such  further  sum 
would  exhaust  all  his  power  to  raise  money  for  that 
object;  but  this  sum  remained  to  be  acted  upon,  and 
the  Act  of  1>7"  can  be  held  to  operate  upon  this  ba- 
lance. In  187<»  the  Legislature,  by  an  Act,  chapter  3S3, 
section  7.  directed  and  authorized  the  said  Comptroller  to 
pav  the  claims  "which  have  been  found  due"  to  the 
members  of  the  said  engine  companies.  &c,  "  under  the 
provisions  of  Section  7  of  the  Act  of  1869,"  and  to  raise 
the  additional  amount  required  for  such  purpose  in  the 
manner  provided  by  the  Act  of  186;).  This  Act  of  1870, 
proper! v  interpreted,  authorized  the  Comptroller  to  pay 
such  claims  only  as  had  been  found  due  under  the  Act 
of  1869.  There  was  no  authority  given  to  the  Comp- 
troller in  the  Act  of  187" 1  to  "audit  claims,"  as  in  the 
Act  of  1869, but  a  mere  direction  to  pay  the  claims  w  hich 
have  been  found  due  under  the  Act  of  18C>9.  I  think  it 
would  be  a  monstrous  abuse  of  the  powers  of  judicial 
construction  to  hold  that  the  Legislature,  in  the  Act  of 
1870,  intended  to  invest  one  individual  w  ith  the  unlim- 
ited power  to  raise  money,  to  the  extent  of  millions  if  he 
pleased,  under  the  language  employed  in  it.  and  to  pay 
it  upon  claims,  without  the  direction  to  audit  them,  w  hen 
in  the  prior  Act  they  had  been  expressly  cautious,  not 
only  to  limit  his  power  as  to  the  amount,  but  to  demand 
of  him,  officially,  to  audit  them.  Under  the  provisions 
of  these  two  sections  of  statutes  the  fraud  alleged  was 
committed.  These  two  sections  must  be  construed  ae 
being  in  pari  materia,  and  their  construction  is  doubtless 
to  be  regarded  as  an  element  in  the  case.    It  was  held 


20] 


by  Lord  Hard  wick  e,  in  Wallis  ve.  Hodson,  Barn  Oh. 
Rep.,  276,  in  tlie  construction  of  two  statutes  for  the 
better  settling  of  intestate  estates,  in  which  the  latter  Act 
had  some  additional  clauses,  "that  the  latter  statute  must 
be  construed  as  if  the  former  had  been  recited  therein.*' 
Dwarris'  Amer.  Ed..  100.  191;  5  Cranch,  1.  Without 
referring  to  rules  of  construction,  it  is  very  clear  to  my 
mind  that  there  is  nothing  in  the  Act  of  187"  that  repeals 
the  limitation  of  the  power  expressed  in  the  Act  of  1  869, 
but  it  remains  a  part  of  the  law.  Indeed,  I  think  the 
law  of  L870  preserves  that  limitation;  it  distinctly  refers 
to  the  claims  that  have  been  found  due  under  the  pro- 
visions of  the  Seventh  Section  of  the  Act  of  1869  and  to 
the  pre-existing  audit.  There  is  no  assumption  in  the 
Act  of  1870  that  an  amount  exceeding  $50,000  was 
necessary,  but  only,  by  fair  construction,  that  the  whole 
sum  of  $50,000  had  not  then  been  raised,  and  that  the 
whole  amount  had  not  then  been  paid.  It  is  not  a  legal 
presumption,  to  be  held  and  taken  of  an  Act  of  the 
Legislature,  that  they  intended  what  they  omitted  to  ex- 
press, nor  that  they  did  not  possess  sufficient  erudition  to 
express  in  appropriate  language  a  power  they  intended  to 
confer.  Statutes,  by  authority  of  which  citizens  may  he 
deprived  of  their  estates,  must  have  the  Btrictosl  con- 
struction ;  and  this  is  so,  whether  it  be  in  the  exercise  of 
a  public  <»r  private  authority.  Powell  vt.  Tuttle  •»  N. 
Y..  401.  True,  looking  only  at,  the  two  acts,  the  necessity 
of  the  Act  of  1870  is  not  apparent.  There  is,  however, 
no  provision  in  the  statute  authorizing  the  raising  of  an 
amount  exceeding  $50,000  :  nor  could  he  raise  a  larger 
sum  w  ithout  an  Act  of  the  Legislature  to  authorize  it. 
The  Comptroller  was  a  statute  officer  ami  a  public  officer ; 
he  was  limited  to  the  power  conferred  *  and  was  responsi- 
ble for  an  abuse  of  power  or  for  the  exercise  of  power  not 
conferred.  Dwarris  lays  down  the  rule  "that  Acts  of  Par- 
liament which  impose  a  dnty  upon  the  public  will  he  criti- 
cally construed  with  reference  t>>  the  particular  language 
in  which  they  are  expressed.  When  there  i>  any  ambi- 
guity found  the  construction  must  he  in  favor  of  the 
public,  because  it  is  a  general  rule  that  where  the  public 
are  to  he  charged  w  ith  a  burden  the  intention  of  the  Lo- 


202 


gislature  to  impose  that  burden  must  be  explicitly  and 
distinctly  shown."  American  Ed..  255.  Tlie  only  word 
in  the  Act  of  1870  upon  which  and  under  which  this  false 
and  unsound  construction  is  claimed  is  the  word  "addi- 
tional." There  is  no  difficulty  in  giving'  full  force  and 
effect  to  that  word  by  applying  it  with  a  common  sense  ap- 
plication to  the  balance  of  s"22.t>6.  which  remained 
unpaid,  or  not  raised,  under  the  Act  of  1866.  But  if  the 
Comptroller  eons' rued  the  statute  as  it  is  now  claimed 
for  him.  or  even  if  he  actually  possessed  the  power,  as 
now  claimed,  and  acted  with  perfect  integrity,  I  am  un- 
able to  see  that  his  nets  would  justify  the  defendant 
Fields  in  the  alleged  acts  of  obtaining  from  him  public 
moneys  by  fraud  and  falsehood  and  by  the  use  of 
false  and  fictitious  claims.  Moneys  so  fraudulently  ob- 
tained are  subject  to  be  recovered  back  by  action.  Title 
to  property  is  not  acquired  by  fraud.  Honesty  and  good 
faith  are  held  to  be  the  living,  pervading,  universal  prin- 
ciples and  bases  of  all  dealing  between  man  and  man 
before  courts  of  justice  ;  and  no  cunning  or  skill  of 
the  perpetrator  of  a  fraud  can  shield  him  in  Courts  where 
a  pure  administration  of  the  law  is  a  controlling  principle 
of  their  action. 

A  disposition  by  a  public  officer  of  funds  in  his  hands 
for  public  purposes,  whether  obtained  under  autho:  ized 
or  unauthorized  power,  is  a  misappropriation  and  a  breach 
of  trust,  and  he  is  and  ought  to  be  held  liable  to  suine- 
body  in  an  action  to  recover  them,  and  any  one  who  aids 
or  assists  him  in  the  commission  of  this  breach  of  duty, 
or  who  by  persuasion,  fraud,  falsehood  or  other  corrupt 
means,  obtains  the  possession  of  such  funds,  is  equally  a 
wrong-doer,  and  is  responsible  to  answer  for  them  in  an 
action.  The  defendant  does  not  interpose  the  objection 
that  Connolly,  the  Comptroller,  who  raised  the  money,  is 
not  sued  with  him,  nor  would  it* be  material  if  he  had. 
Each  individual  who  by  fraud  and  corrupt  means  advises, 
or  assists,  or  participates  in,  or  secures  a  part  or  the 
whole  fruits  of  a  fraudulent  scheme,  is  liable  individually 
I  think,  upon  the  admitted  facts  of  the  case,  that  a  right 
of  action  does  exist  in  favor  of  the  plaintiff,  and  tha'.  such 
facts  sufficiently  appear  on  the  face  of  the  complaint. 


203 


If  we  are  right  in  the  views  ahove  expressed,  then  the 
third  eause  of  demurrer.  "  that  the  plaintiff  has  not 
legal  capacity  t<>  sue,1'  will  fall,  for  the  reasons  given  in 
the  cases  of  the  People  Tweed  and  Connolly;  that 
such  an  action  is  properly  brought  in  the  name  of  the 
people.  That  under  the  first  subdivision  of  this  third 
cause  of  demurrer  the  interest  of  the  people  consists  in 
their  legal  right  as  well  as  duty  at  common  law  to  bring 
the  action,  and  that  no  other  interest  is  legally  necessary. 
That  under  the  second  subdivision  of  this  cause  of  de- 
murrer there  is  no  legal  acknowledgment  of  the  validity 
of  the  defendant's  claims  ;  and  that  under  the  third  sub- 
divison  the  said  moneys  were  not  paid  and  received  by  the 
defendant  by  virtue  of  any  power  and  autlurity  con- 
ferred by  the  plaintiffs. 

The  result  is,  the  order  of  the  Special  Tern:  should  be 
affirmed. 

An  order  was  entered  accordingly,  and  the  defendant 
was  allowed  to  withdraw  his  demurrer  and  amend  with- 
in twenty  days,  on  payment  of  costs. 


